CRC and Philippine child rights

THE CRC AND THE PHILIPPINE LEGAL SYSTEM
Respect for the views of the child

Article 12
1. State Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child the views of the child being given due weight in accordance with the age and maturity of the child. 2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with procedural rules of national law.
1. Right to express views freely in all matters affecting the child Article 12 looks at the child as a subject of right and an active participant. It affirms that the child is a fully-fledged person having the right to express views in all matters affecting him or her, and having those views heard and given due weight. Respecting the opinion of children means giving them an opportunity to express themselves and listening to these views. This does not always mean that the views will be endorsed. Instead, the adult decision maker will incorporate the childs viewpoint to the other elements that will contribute to an enlightened decision. DISCUSSION POINTS NO. 12-1 The term freely refers to a prohibition on coercion or constraint. This means that not only should the state not restrain the child from expressing his or her views, but the state should also not obligate the child into communicating them either.
The Philippines sets a minimum age of 10 years for children to have the right to consent to adoption. Does setting a minimum age violate the right of children less than 10 years old to express their views in adoption cases?
There should be no area of traditional or adult authority, for example the home or the school, in which the childrens views have no place. There are few areas of family, community, regional, national, or international decision making that do not affect children. The intention of the article is to ensure that the views of the child are a relevant factor in all decisions affecting him or her and to stress that no implementation system may be carried out and be effective without the intervention of children in the decisions affecting their lives.1
2. Giving due weight to the views of the child in accordance with age and maturity This portion of the article takes the evolving capacities of the child into consideration when listening to his or her views. In deciding how much weight to give to a childs views in a particular matter, the twin criteria of age and maturity must be considered. Age on its own is not the criterion.
3. Minimum ages defined in national legislation Since it is maintained that age on its own cannot be the sole criterion when deciding how much weight to give a childs views, it follows that the Convention provides no support for a set minimum age. In fact, it rejects any specific age barriers to significant participation of children in decision-making.
1
Article 12, Implementation Handbook (1st ed.)
The Convention posits that any child capable of forming views, even very young children, should have the formal right to be heard. No child who is able to express him or herself should be the denied the right to be heard, especially in a formal setting. 4. Right to Information This principle maintains that that the child should be provided with the necessary information about the possible existing options and consequences arising therefrom. It follows that a decision can only be free once it is also an informed decision.2 5. Family life The Convention recognizes the need to allow children to think and decide for themselves and to make their own choices. Fundamental application of such desire is sought in the domestic scenario by empowering the childs voice within the childs own household. They should be allowed to participate in the discussion of family affairs, especially if it concerns them.3 Children also have the right to choose their own careers, 4 and to direct their own destiny. They can choose their own friends and future spouses. 5 Parents should not impose their own choices nor unduly influence their children in these matters 6 but should, at all times, render support and provide guidance. 6. School and community life The Convention also recognizes the need to incorporate the voice of children with respect to decisions made regarding education and the community, both which heavily affect their well-being. Philippine law, in various capacities, endorses these values. From a community standpoint, the Child and Youth Welfare Code and the Philippine Constitution promote the importance of civic involvement of children. Children are expected to participate actively in civic affairs from a very young age, and parents are expected to give children every opportunity to form or join social, cultural, educational, recreational, civic or religious organizations or movements and other useful community activities.7 From an educational standpoint, the Convention maintains that children should have the right to be heard with regard to all aspects of school life and decision-making about schooling. This includes expressing ones choice of school, exclusion from
2 3
Article 12. Implementation Handbook (1st Ed.) Article 47, P.D. 603 (1974). 4 Article 56, P.D. 603 (1974). 5 Article 57, P.D. 603 (1974). 6 Articles 56 and 57, P.D. 603 (1974). 7 Articles 4(6), and 53 P.D. 603 (1974).
school, formal assessments, all of which should incorporate consultation with the child, and where applicable, with school students as a group. In the Philippines, the youth also have the opportunity to voice their opinions regarding educational matters via student organizations, and are expected to cultivate harmonious relations among their members and with the various segments of the community. 8 The Convention also maintains that children should have avenues of which they can express their complaints about matters that affect them. This is especially imperative to preserve the safety of the child and protect them from abuse and/or violence, including from their parents. As such, children should be allowed to report and complain independent of parental authority. 7. Government and Policy Making Every barangay should have a Local Council for the Protection of Children (LCPC) to promote child and youth welfare. This LCPC is not only comprised of responsible members of the community and government, but also a representative of the youth, who would have a say in the matters that are within the jurisdiction of the council. These matters include access to education, protection of abandoned or maltreated children, juvenile delinquency programs, health, and the creation and maintenance of playgrounds and day-care centers.9 On a more national level, the House of Representatives encompasses representatives from different members of the community, including the youth. The Constitution, under Article VI, Section 5(1) and (2) provides that the composition of the House of Representatives shall include a party-list representative from the youth sector. At the executive level, the Local Government Code (Republic Act No. 7160, Chapters 810)) introduced the creation of the Sangguniang Kabataan (SK). The SK operates as the mouthpiece of the youth in local governance. 8. Employment The Convention also promotes the importance of hearing the childs views in matters of employment. Aside from ensuring that children are not exposed to exploitative measures during employment (covered in Article 32), it is important that the child has access to complaint procedures, and that he or she is heard during any judicial or administrative procedures related to employment. The Convention mentions the contentious issue of child labor, and highlights the importance of listening to the childs wishes regarding the matter, especially if he or she has the sincer e desire and need to engage in employment for him or herself, or his or her family. Although the Child and Youth Welfare Code provides that the childs parents must consent to the employment of the child, there is no mention of obtaining the
8 9
Article 101 P.D. 603 (1974). Article 87 P.D. 603 (1974).
consent of the child himself or herself.10 Republic Act No. 9231, a more recent legislation, however, prohibits slavery or forced labor. Thus, a child may not be engaged in any form of work when the childs consent is violated by means of enticement, violence, intimidation or threat, use of force or coercion, including deprivation of freedom, abuse of moral authority or moral ascendancy, debt bondage or deception.11 9. Health Care Health care is an area of utmost importance where the child should be afforded rights to have his or her views heard. A major issue of significance is the minimum age at which a child can receive medical counseling without parental consent. 10. Media
Media is an important area, especially within the realms of participation and freedom of expression. Article 12 maintains that in order for children to participate and express themselves via media, there must be different types of media that are targeted towards children. Knowledge of media and its impact and importance in society should be imparted to children as a part of their educational experience. The Philippines is home to the Kabataan News Network (KNN), which is a network of about 160 young video journalists from ten different areas from all over the Philippines. KNN produces programming targeted towards teens aged 14-20, and focuses on issues that most concern that age range, including: teen prostitution, girl to girl relationships, election issues, the state of the juvenile justice system, mining in Camarines Norte, and the life of Muslims in Manila. This news network is clear evidence of the importance placed on affording children the right to have their opinions heard, not only in everyday life, but also in mainstream media as well. Simply put, Child participation in mass media and child participation in governance are two models of child participation which, if brought to scale, can generate broader public awareness of and respect for childrens rights.12 Section 8 of the Childrens Television Act stipulates that children should hear, see and express themselves, their culture, languages and life experiences through television programs which affirm their sense of self, community and place .13 Although this portion of the legislation does promote the importance of ensuring that children have opportunities to express themselves via media, it lacks the avenues for children to provide their opinion on media programming that affects them. That is to say, there is no legislation stipulation the need to consult with children, or include them on the councils associated with regulating childrens programming.
Article 109 P.D. 603 (1974). As defined under Sec. 3(d) of R.A. 9208. R.A. 9231 refers to R.A. 9208 for the definition of slavery or forced labor. 12 rd 3 and 4th Periodic Reports on CRC - Philippines 13 Article 8b) R.A. 8370 (1997).
11 10
11. Judicial and administrative proceedings The term judicial proceedings can encompass many proceedings that can affect a child, including: nullity or annulment of marriage, legal separation, custody, care and adoption proceedings, change of name; judicial applications relating to place of residence; judicial decision-making on nationality, immigration and refugee status, and criminal proceedings. It can also cover criminal prosecutions of the parents, the outcome of which can affect children dramatically.14 Administrative proceedings on the other hand, include quasi-judicial decision making in education, health, planning and environmental decisions, social security, child protection, and employment. (a) Competence to testify Section 6 of the Rule on Examination of a Child Witness states that every child is presumed qualified to be a witness. The court may, however, conduct a competency examination motu proprio or on motion of a party, when it finds that substantial doubt exists regarding the ability of the child to perceive, remember, communicate, distinguish truth from falsehood, or appreciate the duty to tell the truth in court. A party seeking a competency examination must present proof of necessity of competency examination. The age of the child by itself is not a sufficient basis for a competency examination. Also, when a child is found by the Court to be a competent witness and capable of testifying, the court may depart from its ordinary rules and allow leading questions on direct examination to be asked of a child of tender years.15 (b) Examination of a child witness The objectives of the Rules are to create and maintain an environment that will allow children to give reliable and complete evidence, minimize trauma to children, encourage children to testify in legal proceedings, and facilitate the ascertainment of truth.16 The Rules shall be liberally construed to uphold the best interests of the child and to promote maximum accommodation of child witnesses without prejudice to the constitutional rights of the accused.17 The Rules state that the examination of a child witness presented in a hearing or any proceeding shall be done in open court. Barring any incapacity to be able to speak, or if the question calls for a different mode of answer, the answers of the witness shall be given orally.
14 15
Article 12. Implementation Handbook (1st Ed.) Rule 132, Sec. 5, Rules of Court as revised. 16 Sec 2. Rules on Examination of a Child Witness 17 Sec 3. Rules on Examination of a Child Witness
There is an increasingly recognized need to adapt courts and other oral decision making bodies to enable children to participate.18 In the Philippine court system, the Rule on Examination of a Child Witness provides special arrangements and accommodations that will allow children to give reliable and complete evidence, minimize trauma to children, encourage children to testify in legal proceedings, and facilitate the ascertainment of truth.19 Section 12 of the Rule, for instance, designates a special waiting area for child witnesses. The courts are encouraged to provide a waiting area for children that is separate from waiting areas used by other persons. The waiting area for children should be furnished so as to make a child comfortable. Furthermore, Section 13 of the Rule outlines provisions around the environment of the courtroom. To create a more comfortable environment for the child, the court may direct and supervise the location, movement and deportment of all persons in the courtroom including the parties, their counsel, child, witnesses, and support persons. The Rule reflects the importance of creating a comfortable environment by allowing the child to testify from a place other than the witness chair. Lastly, the judge need not wear his judicial robe to create a more casual environment. Sections 26 and 27 respectively allow for screens and video tapes if the child is not prepared to testify in a traditional open court, especially in view of the accused. Accommodations such as these need not be supported by a finding of trauma to the child. The Article also emphasizes the importance of participation without discrimination. All children have an equal right to express views freely and have them taken seriously. It follows that the Rule provides for the use of an interpreter in court when a child is unable to communicate due to lack of facility in the English or Filipino language or other reasons such as disability and developmental level. Section 9(a) states:
When a child does not understand the English or Filipino language or is unable to communicate in said languages due to his developmental level, fear, shyness, disability, or other similar reason, an interpreter whom the child can understand and who understands the child may be appointed by the court, motu proprio or upon motion, to interpret for the child.
The Section also outlines provisions if a witness or member of the family of the child is the only person who can serve as an interpreter for the child. In that case, the individual shall not be disqualified and may serve as the interpreter of the child. The interpreter, however, who is also a witness, shall testify ahead of the child. The Article also posits that the child may be heard though a representative or an appropriate body. This maintains that the State must respect that the child may be heard in various ways so as to ensure the best possible way of expressing his or her
18 19
Article 12. Implementation Handbook (1st Ed.) Rule on Examination of a Child Witness, Sec. 2
views in a free and informed manner. Section 5 of the Rule outlines provisions where the court may appoint a guardian ad litem for a child who is a victim of, accused of, or a witness to a crime to promote the best interests of the child. Although the guardian ad litem may not testify in any proceeding concerning any information, statement, or opinion received from the child in the course of serving as a guardian ad litem, the court may find exception to this rule if it is necessary to promote the best interests of the child. The Rule also allows for the appointment of a facilitator to pose questions to child. The court may appoint a facilitator if it determines that the child is unable to understand or respond to questions asked. The facilitator may be a child psychologist, psychiatrist, social worker, guidance counselor, teacher, religious leader, pant, or relative. 20 When a facilitator is appointed, respective counsels for the parties may only pose questions to the child through the facilitator. If the child is not likely to understand the questions posed by counsel, the facilitator may interpret the questions in words that are comprehensible to the child and which convey the meaning intended by counsel. In this way, the child has the opportunity to best express him or herself since he or she has a sufficient understanding of the question at hand.21
(c) Civil and criminal actions In civil actions, a minor may sue through his/her father, mother, guardian, or if he/she has none, through a guardian ad litem appointed by the court.22 However, with respect to criminal cases, a child victim of abuse or exploitation may by himself/herself file a criminal case for the redress of his/her grievances, unless he/she is clearly incompetent to do so. In cases of seduction, abduction, rape or acts of lasciviousness, the law requires that the complaint be filed by the offended party himself/herself or his/her parents, grandparents, or guardian. The offended party, even if he/she were a minor, has the right to institute the prosecution for the above offenses, independently of his/her parents, grandparents, or guardian, unless he/she is incompetent or incapable of doing so upon grounds other than his/her minority. Where the child victim fails to file the complaint, his/her parents, grandparents, or guardian, may file the same.23 Similarly, cases of child abuse and exploitation punishable under R.A. 7610 or the Child Protection Act may be filed by: a) the child victim himself/herself; b) his/her parents or guardian; c) an ascendant or collateral relative within the third degree of consanguinity; d) an officer, a social worker or representative of a licensed child-caring institution; e) an officer or a social worker of the Department of Social Welfare and Development; f) a Barangay Chairman; or g) at least three concerned, responsible citizens where the violations occurred.24
20 21
Section 5 The Rules on the Examination of a Child Ibid 22 Rule 3, Sec. 5, Rules of Court as revised. 23 Rule 110, Sec. 4, Rules of Court as revised. 24 Article XI, Sec. 27, R.A. 7610 (1992).
A statement made by a child describing any act or attempted act of child abuse, not otherwise admissible under the hearsay rule, may be admitted in evidence in any criminal or non-criminal proceeding.25 However, this is subject to the following conditions: 1) that before such hearsay statement may be admitted, its proponent shall make known to the adverse party the intention to offer such statement and its particulars to provide him a fair opportunity to object. If the child is available, the court shall upon motion of the adverse party, require the child to be present at the presentation of the hearsay statement for cross-examination by the adverse party. When the child is unavailable, the fact of such circumstance must be proved by the proponent; 2) In ruling on the admissibility of such hearsay statement, the court shall consider the time, content and circumstance thereof which provide sufficient indicia of reliability.26 To protect the childs right to be heard in judicial proceedings, the law tasks the prosecutor in a child abuse case to take the necessary steps to exclude the public during the giving of testimony if the child victim, taking into consideration the age, psychological maturity and understanding of the child victim, the nature of the unlawful acts committed, the desire of the victim and the interests of the childs family. 27 (d) Adoption The Domestic Adoption Act of 1998 also respects the views of children in cases of adoption. A child to be adopted who is ten years or older must give his written consent to the adoption.28 In the same context, children of the adopting parents, whether legitimate, illegitimate or adopted, who are over ten years of age, must not only be consulted but must also give their written consent to the adoption.29 Furthermore, the adopted person (or the Department of Social Welfare or any duly licensed child placement agency if the adopted is still a minor or otherwise incapacitated) may ask for the rescission of the adoption on the same grounds that cause the loss of parental authority under the Civil Code. 30 This reflects that the child, even after adoption, still has his or her views respected and heard when he or she feels that he or she is not in a comfortable situation.
(e) Separation In case of separation, the custody of the child is often dragged into the midst of legal battle. The law decides whom the children would have to live with. A child below
Section 28, AM. No. 004-07-SC Rule on Examination of a Child Witness. (2000) Ibid. 27 Section 22, Rules and Regulations on the Reporting and Investigation of Child Abuse Cases, pursuant to Republic Act 7610 (1992). 28 Section 9, Republic Act 8552 (1998) 29 Ibid. 30 Article 40, P.D. 603 (1974).
26 25
seven years old cannot make a choice for himself or herself. The law makes that choice for the child, giving custody to the mother unless the court finds compelling reasons to order otherwise.31 If the child is already seven years of age, the law recognizes that he or she is already capable of making intelligible choices. The childs choice of a parent would be given consideration by the judge in the awarding of custody rights, unless the parent chosen is unfit.32
ILLUSTRATIVE CASE
DAISIE T. DAVID vs. COURT OF APPEALS, ET AL. G.R. No. 111180 November 16, 1995 (320 Phil 138) Petitioner Daisie T. David worked as secretary of private respondent Ramon R. Villar, a businessman in Angeles City. Private respondent is a married man and the father of four children, all grown-up. After a while, the relationship between petitioner and private respondent developed into an intimate one, as a result of which a son, Christopher J., was born on March 9, 1985 to them. Christopher J. was followed by two more children, both girls, namely Christine, born on June 9, 1986, and Cathy Mae on April 24, 1988. The relationship became known to private respondent's wife when Daisie took Christopher J. to Villar's house at Villa Teresa in Angeles City sometime in 1986 and introduced him to Villar's legal wife. After this, the children of Daisie were freely brought by Villar to his house as they were eventually accepted by his legal family. In the summer of 1991, Villar asked Daisie to allow Christopher J., then six years of age, to go with his family to Boracay. Daisie agreed, but after the trip, Villar refused to give back the child. Villar said he had enrolled Christopher J. at the Holy Family Academy for the next school year. On July 30, 1991, Daisie filed a petition for habeas corpus on behalf of Christopher J. After hearing, the Regional Trial Court, Branch 58 at Angeles City, rendered a decision, the dispositive portion of which reads: WHEREFORE, premises considered, judgment is hereby rendered in favor of the petitioner and against the respondent: 1. the rightful custody of the minor Christopher J. T. David is hereby given to the natural mother, the herein petitioner Daisie T. David; 2. respondent is hereby ordered to give a temporary support of P3,000.00 a month to the subject minor Christopher J. T. David, Christine David and Cathy Mae David to take effect upon the finality of this decision; and 3. to pay the costs of this suit.
SO ORDERED.
31 32
Article 213, Family Code. Ibid
On appeal, the Court of Appeals reversed, holding: We agree with the respondent-appellant's view that this is not proper in a habeas corpus case. Law and jurisprudence wherein the question of custody of a minor child may be decided in a habeas corpus case contemplate a situation where the parents are married to each other but are separated. This is so because under the Family Code, the father and mother have joint parental authority over their legitimate children and in case of separation of the parents there is need to determine rightful custody of their children. The same does not hold true in an adulterous relationship, as in the case at bar, the child born out of such a relationship is under the parental authority of the mother by express provision of the law. Hence, the question of custody and support should be brought in a case singularly filed for the purpose. In point of fact, this is more advisable in the case at bar because the trial court did not acquire jurisdiction over the other minor children of the petitioner-appellee and respondent-appellant and, therefore, cannot properly provide for their support. Admittedly, respondent-appellant is financially well-off, he being a very rich businessman; whereas, petitioner-appellee depends upon her sisters and parents for support. In fact, he financially supported petitioner-appellee and her three minor children. It is, therefore, for the best interest of Christopher J. that he should temporarily remain under the custody of respondent-appellant until the issue on custody and support shall have been determined in a proper case. WHEREFORE, the decision appealed from is hereby SET ASIDE, and a NEW ONE ENTERED dismissing the petition for habeas corpus on Special Proceeding No. 4489. Daisie in turn filed this petition for review of the appellate court's decision. Rule 102, 1 of the Rules of Court provides that "the writ of habeas corpus shall extend to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto." It is indeed true, as the Court of Appeals observed, that the determination of the right to the custody of minor children is relevant in cases where the parents, who are married to each other, are for some reason separated from each other. It does not follow, however, that it cannot arise in any other situation. For example, in the case of Salvaa v. Gaela, 1 it was held that the writ of habeas corpus is the proper remedy to enable parents to regain the custody of a minor daughter even though the latter be in the custody of a third person of her free will because the parents were compelling her to marry a man against her will. In the case at bar, Christopher J. is an illegitimate child since at the time of his conception, his father, private respondent Ramon R. Villar, was married to another woman other than the child's mother. As such, pursuant to Art. 176 of the Family Code, Christopher J. is under the parental authority of his mother, the herein petitioner, who, as a consequence of such authority, is entitled to have custody of him. Since, admittedly, petitioner has been deprived of her rightful custody of her child by private respondent, she is entitled to issuance of the writ of habeas corpus. Indeed, Rule 102, Sec.1 makes no distinction between the case of a mother who is separated from her husband and is entitled to the custody of her child and that of a
mother of an illegitimate child who, by law, is vested with sole parental authority, but is deprived of her rightful custody of her child. The fact that private respondent has recognized the minor child may be a ground for ordering him to give support to the latter, but not for giving him custody of the child. Under Art. 213 of the Family Code, "no child under seven years of age shall be separated from the mother unless the court finds compelling reasons to order otherwise." Nor is the fact that private respondent is well-off a reason for depriving petitioner of the custody of her children, especially considering that she has been able to rear and support them on her own since they were born. Petitioner is a market vendor earning from P2,000 to P3,000 per month in 1993 when the RTC decision was rendered. She augments her income by working as secretary at the Computer System Specialist, Inc. earning a monthly income of P4,500.00. She has an arrangement with her employer so that she can personally attend to her children. She works up to 8:00 o'clock in the evening to make up for the time lost during the day. That she receives help from her parents and sister for the support of the three children is not a point against her. Cooperation, compassion, love and concern for every member of the family are characteristics of the close family ties that bind the Filipino family and have made it what it is. Daisie and her children may not be enjoying a life of affluence that private respondent promises if the child lives with him. It is enough, however, that petitioner is earning a decent living and is able to support her children according to her means. Xxx In the case at bar, as has already been pointed out, Christopher J., being less than seven years of age at least at the time the case was decided by the RTC, cannot be taken from the mother's custody. Even now that the child is over seven years of age the mother's custody over him will have to be upheld because the child categorically expressed preference to live with his mother. Under Art. 213 of the Family Code, courts must respect the "choice of the child over seven years of age, unless the parent chosen is unfit" and here it has not been shown that the mother is in any way unfit to have custody of her child. Indeed, if private respondent loves his child, he should not condition the grant of support for him on the award of his custody to him (private respondent). WHEREFORE, the decision of the Court of Appeals is REVERSED and private respondent is ORDERED to deliver the minor Christopher J. T. David to the custody of his mother, the hereinafter petitioner, and to give him temporary support in the amount of P3,000.00 pending the fixing of the amount of support in an appropriate action. SO ORDERED. Narvasa, C.J., Regalado and Puno, JJ., concur. Francisco, J., is on leave.
(f) Environmental protection Numerous articles in the Convention stress the importance of educating children on the dangers and risks of environmental pollution, and instill a sense of respect for the
preservation of the earth. Article 12 maintains this by providing that opinions of children and youth regarding such issues should be encouraged, heard, and respected. In the landmark case of Oposa, et al. vs. Factoran and Rosario,33 the Supreme Court pronounced that minors can, for themselves, for others of their generation and for the succeeding generations, file a class suit to prevent the misappropriation or impairment of Philippine rainforests:
ILLUSTRATIVE CASE
OPOSA, ET AL. VS. FACTORAN AND ROSARIO G.R. No. 101083 July 30, 1993 This case, however, has a special and novel element. Petitioners minors assert that they represent their generation as well as generations yet unborn. We find no difficulty in ruling that they can, for themselves, for others of their generation and for the succeeding generations, file a class suit. Their personality to sue in behalf of the succeeding generations can only be based on the concept of intergenerational responsibility insofar as the right to a balanced and healthful ecology is concerned. Such a right, as hereinafter expounded, considers the "rhythm and harmony of nature." Nature 9 means the created world in its entirety. Such rhythm and harmony indispensably include, inter alia, the judicious disposition, utilization, management, renewal and conservation of the country's forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other natural resources to the end that their exploration, development and 10 utilization be equitably accessible to the present as well as future generations. Needless to say, every generation has a responsibility to the next to preserve that rhythm and harmony for the full enjoyment of a balanced and healthful ecology. Put a little differently, the minors' assertion of their right to a sound environment constitutes, at the same time, the performance of their obligation to ensure the protection of that right for the generations to come.
The Convention also states that governments should establish avenues (local, regional, and national) to incorporate the views and concerns of children with respect to policies around environmental preservation. The Philippines concurs with this approach, and has created legislation to promote these values. Executive Order Number 52 was set up for the purpose of creating Green Brigades (GB) to promote environmental awareness among Filipino youth in every barangay. The GBs will formulate and implement the local youth environmental action plans that will address the specific environmental concerns of the barangay, and undertake educational projects which will promote youth partnership in the sustainable development programs in the barangay.34
(g) Filial privilege
33 34
G.R. No. 101083 July 30, 1993 Executive Order No. 52
Section 25 of the Revised Rules on Evidence recognizes parental and filial privilege, where no person may be compelled to testify against his or her parents, other direct ascendants, children or other direct descendants. As such, children are not expected to testify against their family members, but can do so if they wish. In the case of People of The Philippines vs.Artemio Invencion Y Soriano, 11 year old Elven Soriano testified against his father in an incestual rape case. An important point to note was that the court maintained that the filial privilege rule was not a rule meant to disqualify a descendant as a suitable witness when testifying against an ascendant, but to provide a privilege to exercise choice of whether to testify or not, which, like other privileges, could be waived if wished. In this case, Elven was not compelled to testify against his father. Instead, he chose to waive that filial privilege and declared that he was testifying as a witness against his father of his own accord and only "to tell the truth.35 (h) Juvenile justice The Juvenile Justice and Welfare Act attempts to incorporate the views of the child on many facets. Primarily, it stipulates that every child who is in conflict with the law is entitled to a set of rights. Included in these rights is the right to testify as a witness in his/her own behalf.36 The Act also maintains the importance of consulting with children when formulating and recommending policies for the prevention of juvenile delinquency and the administration of justice, as well as for the treatment and rehabilitation of the children in conflict with the law. The Act stipulates that the Council shall set up a mechanism to ensure that children are involved in research and policy development. 37 The Act incorporates the views of the child by stipulating sessions of conferencing, mediation or conciliation prior to the childs entry into the criminal justice system.38 If during the conferencing, mediation or conciliation, the child voluntarily admits the commission of the offense, such admission shall not be used against the child in any subsequent judicial, quasi-judicial or administrative proceedings.39 Section 30 of the act outlines provisions around the formulation of the diversion program. When creating a diversion program for the child, not only are the individual characteristics and the circumstances of the taken into consideration, but also the child's feelings of remorse for the offense he/she committed. And during the formulation of the diversion program, the child in conflict with the law must agree to the program for
35 36
G.R. No. 131636 March 5, 2003 Section 5, Republic Act No. 9344, The Juvenile Justice and Welfare Act (2006). 37 Section 9 (g), R.A. 9344 38 Section 25 Juvenile Justice and Welfare Act (2006). 39 Section 26. Juvenile Justice and Welfare Act (2006).
it to be binding.40 The Act also requires the consent of the child to participate in a community-based program for the childs rehabilitation and reintegration.41
(i) Placement in alternative care Although covered in more detail in Article 20, Article 12 emphasizes the importance of hearing the childs views in an y judicial or administrative proceeding relating to alternative care. This is echoed in Article 9, where it is stated that all interested parties (including children) should have the opportunity to express their views in regard to any proceedings that determine whether or not it is necessary to separate a child from his or her parents. Most of the legislation around alternative childcare in the Philippines does not mandate taking into consideration the views of the child. Much of the legislation stipulates written permission from parents upon voluntary commitment of a child to an institution, but does not indicate the need to hear the views of the child. 42 Article 159 of the Child and Youth Welfare Code, however, does detail out some minor provisions where the views of the child are taken into consideration. Where a child is placed into temporary custody, he or she may request the care to be discontinued if it appears that proper care and treatment is not being given. Although this is a minor illustration of listening and respecting the childs views in regard to alternative care, there is much left to be desired in terms of legislation in this area.
Psychological Implications of Child Testimonies and Interviews The presence of children in the court environment has always raised contentious issues, especially when it is the situation that the child is needed to testify or give information via an interview. Many studies have found that the act of testifying itself is enough to create emotions of fear and nervousness around children. Adding this issue to the fact that there is trauma and stress associated with testifying in front of the accused, often children cannot produce accurate testimonies due to their emotions. When presented in front of the accused, children may show signs of anxiety, refuse to testify, be unable to verbalize answers or state accusations. Children tend to have many reservations about testifying due to their lack of knowledge of the legal process. There are many implications to testifying that they perceive to be true, including: embarrassing themselves while testifying (crying, not being able to comprehend questions, experiencing panic attacks, forgetting details, etc.), loss of privacy (having strangers and family members hear details of the offense, having their names identified in the media), the belief that they will be responsible for an undesirable outcome, fear of retaliation if they give complete evidence, the accused having the ability to
40 41
Section 25, R.A. 9344. Section 55, R.A. 9344. 42 Article 155. P.D. 603 (1974).

43
hurt the child in the witness box, or that the child will be sent to prison.
As such, courts recognize the cognitive and psychosocial immaturity of young witnesses, victims, and suspects. Interviews and examinations must be conducted in such a way as to alleviate the child of their fears and reservations, and make them feel as comfortable as possible so they can express themselves freely, without hesitation. A major issue involved with interviewing and examining children is suggestibility. Suggestibility occurs when the child has a tendency to be vulnerable to outside influences 44 and pressures when responding to questions. This can skew their responses to reflect what the interviewer is looking for. Studies on young suspects has found that they can encounter interrogative suggestibility which is defined as the tendency of an individuals account of events to be altered by 45 misleading information and interpersonal pressure within interviews. Furthermore, studies have shown that investigative interviews that involve the presence of authority figures like police officers (and not third-party interviewers) tended to result in many leading questions posed to the interviewees and in turn, fewer accurate statements and an increase in inaccurate 46 statements produced by the children. Taken together, studies indicate that it may be difficult for children to recount events fully and accurately when the perpetrator is physically present, or if they are being interviewed by what they deem as an intimidating authority figure. In order to produce the best possible and most accurate testimony from children, it is very important for courts to ensure that measures are taken to promote feelings of safety and comfort. Legal practices such as testifying behind a screen or via close-circuit television, educating the child on courtroom procedures and protections that they are afforded, and providing reassurance to the child that he or she is in a safe environment and has the freedom to express him or herself fully are some of the measures that can help alleviate any sort of discomfort and apprehension, and thus result in fewer inaccurate testimonies.
Alison Cunningham and Pamela Hurley. Overview of Issues Related to Child Testimony (2007). Jessica Myer, et al. Testimony and Interrogation of Minors Assumptions About Maturity and Morale. American Psychologist. May- June 2006. 45 Jessica Myer, et al. Testimony and Interrogation of Minors Assumptions About Maturity and Morale. American Psychologist. May- June 2006. 46 Jessica Myer, et al. Testimony and Interrogation of Minors Assumptions About Maturity and Morale. American Psychologist. May- June 2006.
44
43
Childs right to freedom of expression

Article 13
1. The child shall have the right to freedom of expression; this shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print in the form of art, or through any other media of the child's choice. 2. The exercise of this right may be subject to certain restrictions, but these shall only be such as are provided by law and necessary: (a) For respect of the rights and reputations of others; or (b) For the protection of national security or of public order (padre public), or of public health or morals.
1. Right to freedom of expression The right to freedom of expression is among the rights recognized in the Convention that is also under the International Bill of Human Rights. Since these rights are deemed to be guaranteed for everyone, they in turn apply to children as well. The right to freedom of expression entails the freedom to hold opinions without interference, and the ability to seek, receive, and impart information and ideas through any avenue.47 With respect to children, this right can be easily overlooked, as children may be deemed to not have the capacity to hold ideas or thoughts that warrant the right being afforded to them. As such, states are expected to install constitutional or legal provisions to ensure that these rights are specifically afforded to children, and make certain that there are mechanisms in place to ensure that they have the avenues to express themselves, and if not, that procedures are put into place to remedy these violations. 2. Constitutional right to freedom of expression as applied to children Freedom of expression is guaranteed under the present Philippine constitution under Article 3, stating that: No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.48 It follows that children should be allowed to freely express their ideas. Article 3 of the Child and Youth Welfare Code further maintains this by providing that Every child has the right to grow up as a free individual, in an atmosphere of peace, understanding, tolerance, and universal brotherhood, and with the determination to contribute his share in the building of a better world.49 In order to encompass all forms of freedom, the term free individual in this case should be construed to include the right to freedom of expression. (a) Family Freedom of expression does find its way into the family home via legislation provided in the Child and Youth Welfare Code. Article 47 states that whenever possible, parents shall allow the child to participate in th e discussion of family affairs, especially in matters that particularly concern him. In cases involving discipline, the child shall be given a chance to present his side.50 Article 48 provides that parents shall endeavor to win the childs confidence and to encourage him/her to communicate with them on his/her activities and problems. (b) Community and Society
47 48
Article 13 Implementation Handbook Article III, Section 4, 1987 Constitution. 49 Article 3, P.D. 603 (1974). 50 Article 47, P.D. 603 (1974).
There is also legislation to promote the right to freedom of expression in the community. P.D. 2003, or the Filipino Children and Youth Participation in Nation Building Law, was enacted in December 1985 to encourage the participation of the children and the youth in nation building. The Constitution, under Article VI, Section 5(1) provides for the election of sectoral representatives to the House of Representatives, including one from the youth sector. The creation of the Katipunan ng Kabataan or the youth federation under the Local Government Code51 allows the youth to participate in more civic and political affairs and gives them opportunities to freely express their views and opinions. This organization serves as the consultative body of the youth in deciding important issues affecting the youth in every barangay.52 Its functions are: a) to consult and coordinate with all youth organizations in the barangay policy formulation and program implementation; and, b) to coordinate with the appropriate national agency for the implementation of youth development programs and projects at national level.53 The Sangguniang Kabataan is the active body of Katipunan ng Kabataan. It has the power to promulgate resolutions to carry out the objectives of the youth in the barangay; initiate programs designed to enhance the social, political, economic, cultural moral, spiritual and physical development of the members, and hold fund-raising activities the proceeds of which shall be tax-exempt and shall accrue to the general fund of the Sangguniang Kabataan among others.54 The State indeed recognizes the vital role of the youth in nation building as it updates legislation towards increasing roles of the youth. In R.A. 8044, enacted in 1995, the state established the National Youth Commission which sought to encourage youth involvement in character building, development, civic efficiency, stewardship of natural resources, agriculture and industrial productivity and participation in structures for policy making and program implementation to reduce the incidence of poverty and accelerate socio-economic development. (c) Media In June 1997, the State provided the children with the ir own National Childrens Broadcasting Day which is featured by three hours airtime programming strictly for, on or about children and produced especially for such day. Such programs should be child friendly, promote positive values, and enable children to exercise their rights to freedom of thought and expression. Participation of children as talents and guest shall be encouraged.55
51 52 53 54 55
Section 242, Local Government Code (1991). Section 425, Local Government Code (1991). Section 424, Local Government Code (1991). Section 426, Local Government Code (1991). Republic Act 8296, Section 2.
Furthermore, Section 8 of the Childrens Television Act specifies that children should hear, see and express themselves, their culture, languages and life experiences through television programs which affirm their sense of self, community and place .56 As such, the creation of Kabataan News Network (KNN), a weekly, televised news magazine for youths and by youths promotes the importance of freedom of expression in the realm of media with respect to children. (d) Cultural life, Arts, and Recreation Culture, arts, and recreation are given much importance in Philippines. Article XIV, Section 14 of the Constitution provides that, T he State shall foster the preservation, enrichment, and dynamic evolution of a Filipino national culture based on the principle of unity in diversity in a climate of free artistic and intellectual expression. Section 18(1) supports this by ensuring equal access to cultural opportunities through the educational system, public or private cultural entities, scholarships, grants and other incentives, and community cultural centers, and other public venues. Taken together, it can be interpreted to promote the utmost importance of freedom of expression for children and youth within the realm of the arts as well. 3. Children with Disabilities The Convention makes note of the fact that children with disabilities may require special attention to ensure that they are being afforded the same rights to freedom of expression as their counterparts without disabilities. Although there is no legislation that explicitly affords the right of freedom of expression to children with disabilities, the Magna Carta for Disabled Persons taken together with the articles in the Constitution that ensure the fundamental right of freedom of expression, can be interpreted to afford these same rights to persons and children with disabilities. 4. Juveniles deprived of their liberty Children in conflict with the law may be deprived of their physical liberty, however they shall retain their right to freedom of expression, as postulated by the Convention. The Juvenile Justice and Welfare Act maintains this by ensuring that any proceedings for which the child is involved shall be conducted in the best interest of the child and in a manner which allows the child to participate and to express himself/herself freely. 57 5. Restrictions on the right The right to free expression of children, however, is not absolute. The childrens right to free expression must be balanced with their responsibility to respect the dignity, personality, privacy and peace of mind of their neighbors. The Convention maintains that the restriction to the right to freedom of expression as applied to children should be the very same restrictions placed upon adults. These restrictions should only be in place
56 57
Article 8b) R.A. 8370 (1997). Sec 2b. Juvenile Justice and Welfare Act 2006).
to ensure that the respect of the rights of reputations of others is preserved, and to protect national security, public order, and public health and morals. All restrictions to freedom of expression must be legislated by law. The Revised Penal Code houses many offenses that restrict ones freedom of expression. This includes:
Art. 90. The crime of oral defamation and slander by deed shall prescribe in six months. Art. 142. Inciting to sedition. The penalty of prision correccional in its maximum period and a fine not exceeding 2,000 pesos shall be imposed upon any person who, without taking any direct part in the crime of sedition, should incite others to the accomplishment of any of the acts which constitute sedition, by means of speeches, proclamations, writings, emblems, cartoons, banners, or other representations tending to the same end, or upon any person or persons who shall utter seditious words or speeches, write, publish, or circulate scurrilous libels against the Government (of the United States or the Government of the Commonwealth) of the Philippines, or any of the duly constituted authorities thereof, or which tend to disturb or obstruct any lawful officer in executing the functions of his office, or which tend to instigate others to cabal and meet together for unlawful purposes, or which suggest or incite rebellious conspiracies or riots, or which lead or tend to stir up the people against the lawful authorities or to disturb the peace of the community, the safety and order of the Government, or who shall knowingly conceal such evil practices. Art. 355. Libel means by writings or similar means. A libel committed by means of writing, printing, lithography, engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition, or any similar means, shall be punished by prision correccional in its minimum and medium periods or a fine ranging from 200 to 6,000 pesos, or both, in addition to the civil action which may be brought by the offended party.
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These examples of offenses related to libel are illustrative of restrictions on the right to freedom of expression as legislated by law. Their purposes are to either respect the rights and reputations of others by prohibiting a person from humiliating another on account of his religious beliefs, lowly station in life, place of birth, physical defect, or other condition, or to preserve national security by preventing rebellious views on the government59. These offenses will apply to children in the same way that other penal offenses will apply, depending on their age. There have be some concerns put forward about the role of parents in relation to childrens right to freedom of expression. The article does not discount the authority of parent or their role in guiding and advising their children. It does maintain, however, that it should not affect the content of the rights themselves, and that the maturity and evolving capacities of the child should be taken into consideration.60
58 59
Article 90 Revised Penal Code Article 26, Republic Act 386 (1950). 60 Article 13 Implementation Handbook
Childs right to freedom of thought, conscience and religion

Article 14
1. States Parties shall respect the right of the child to freedom of thought, conscience and religion. 2. States Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child. 3. Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights and freedom of others.
1. Thought Freedom of thought is linked to the right to form and express opinions (Article 12). The practical implementation of this is related to the freedom to seek, receive and impart information and ideas of all kinds (Article 13). This also covers a childs rights to appropriate information (Article 17) and the childs right to education (Articles 28 & 29). Finally, a child cannot be compelled to reveal his or her thoughts because of the DISCUSSION POINTS NO. 14-1 childs right to privacy (Article 16). For certain religions, The second paragraph applies to freedom of thought in that those helping a child develop their thoughts, such as a parent, must have this right and duty respected. The third paragraph does not apply to freedom of thought there are no restrictions on this freedom. 2. Conscience Since freedom of conscience is often context specific, linking it to an example such as a child being a conscientious objector is helpful. If this is the issue then a state could not have mandatory military training or education for children as it would offend their freedom of conscience. There is no restriction on this freedom but parents are allowed to use their discretion in helping a child to develop their conscience. 3. Religion
baptism takes place while the child is still an infant. Is infant baptism a violation of the Convention, considering that an infant is not yet capable of making a choice? May parents, on the basis of their right and duty to rear their children for the development of moral character, compel their children to study in a school where the parents religion is taught? Conversely, may children compel their parents to enroll them in schools where the religion of their choice is taught? How will a disagreement be resolved?
Freedom of religion is defined in the Universal Declaration of Human Rights, wherein a person is guaranteed freedom of thought, conscience and religion, including the freedom to change his or her religion or belief. Furthermore, a person is free to practice his or her religion alone or with others, in public or private, and to manifest his or her religion or belief in teaching, practice, worship and observance. 61 The International Convention on Civil and Political Rights (ICCPR) enhances this definition. It states that people are to be free of coercion concerning their choice of religion and that any limitations on freedom of religion must be prescribed by law and
61
Article 18, Universal Declaration of Human Rights, http://www.un.org/en/documents/udhr/index.shtml.
necessary to protect public safety, order, health, morals, or the fundamental rights and freedoms of others.62 The Human Rights Committee issued a comment on Article 18 in 1993 stating that the terms religion and belief should be construed broadly protecting t heistic, non-theistic and atheistic beliefs as well as the right not to express any religion or belief. Moreover, there can be no restrictions on the freedom of thought or conscience, or the freedom to adopt a religion or belief. Finally, no one can be compelled to share their religious belief as set out in Article 18 of the ICCPR and further protected by the right to privacy established in Article 17. This protection is reinforced for children under Article 16 of the Convention on the Rights of the Child.63 The Philippine Constitution establishes a number of protections for religion: no law shall be made respecting the establishment of religion or prohibiting the free establishment of religion; people will always be allowed to exercise the right to profess their religion and worship without discrimination or preference, and there will be no religious requirement for civil or political rights. However, the Philippine Constitution is silent on freedom of thought and conscience.64 The limitations allowed by paragraph 3 on the freedom to manifest ones religion or beliefs are identical to those in article 18(3) of the International Covenant on Civil and Political Rights. In a General Comment, the Human Rights Committee notes that article 18 distinguishes the freedom of thought, conscience, religion or belief from the freedom to manifest religion or belief: It does not permit any limitations whatsoever on the freedom of thought and conscience or on the freedom to have or adopt a religion or belief of ones choice. These freedoms are protected unconditionally, as is the right of everyone to hold opinions without interference in article 19.165 In relation to the freedom to manifest religion or belief, the Human Rights Committee emphasizes that restrictions are permitted only if limitations are prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others... In interpreting the scope of permissible limitation clauses, States Parties should proceed from the need to protect the rights guaranteed under the Covenant... Limitations imposed must be established by law and must not be applied in a manner that would vitiate the rights guaranteed in article 18. The Committee observes that paragraph 3 of article 18 is to be strictly interpreted: restrictions are not allowed on grounds not specified there, even if they would be allowed as restrictions to other rights protected in the Covenant, such as national security. Limitations may be applied only for those purposes for which they were prescribed and must be directly related and proportionate to the specific need on which
62 63
Part III, Article 18, International Covenant on Civil and Political Rights Human Rights Committee, General Comment No. 22, 1993, HRI/GEN/1/Rev.8, para. 2, p. 195 64 Article III, Section 5, 1987 Constitution 65 Committee on the Rights of the Child, General Comment No. 1, 2001, CRC/GC/2001/1
they are predicated. Restrictions may not be imposed for discriminatory purposes or applied in a discriminatory manner...66 4. Childs rights and religious education Ensuring freedom of religion in the context of compulsory education has become an increasing concern for the Committee. In its first General Comment, issued in 2001, on The aims of education, the Committee emphasizes that children do not lose their human rights by virtue of passing through the school gates and highlights the importance of schools respecting childrens participation rights.67 The International Covenant on Civil and Political Rights requires States (in article 18(4)) to respect the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions. In its General Comment on this provision, the Human Rights Committee states: The Committee is of the view that article 18(4) permits public school instruction in subjects such as the general history of religions and ethics if it is given in a neutral and objective way. The liberty of parents or legal guardians to ensure their children receive a religious and moral education in conformity with their own convictions, set forth in article 18(4), is related to the guarantees of the freedom to teach a religion or belief stated in article 18(1). The Committee notes that public education that includes instruction in a particular religion or belief is inconsistent with article 18(4) unless provision is made for non-discriminatory exemptions or alternatives that would accommodate the wishes of parents and guardians.68 But the Convention on the Rights of the Child requires that arrangements for moral and religious education be reviewed to ensure respect for the childs right to freedom of religion, with parental direction provided in a manner consistent with the childs evolving capacities. Some States do not allow religious teaching in state-supported education. In others, there may be religious education and worship or observance in one or more religions. Some States have set an age at which any control of the childs manifestation of religion transfers from parents to the child, although the concept of evolving capacities in article 5 and article 14 appears to demand more flexibility.
66 67
Human Rights Committee, General Comment No. 22, 1993, HRI/GEN/1/Rev.8, paras. 3 and 8, p. 196 Committee on the Rights of the Child, General Comment No. 1, 2001, CRC/GC/2001/1, para. 8 68 Human Rights Committee, General Comment No. 22, 1993, HRI/GEN/1/Rev.8, para. 6, p. 196
The Philippine Constitution allows for parents to delegate some of the teaching of religion to schools:
At the option expressed in writing by the parents or guardians, religion shall be allowed to be taught to their children or wards in public elementary and high schools within the regular class hours by instructors designated or approved by the religious authorities of the religion to which the children or wards belong, without additional cost 69 to the Government.
The Child and Youth Welfare Code provides some instructions on religious education. It requires that the State respect the rights of the Church in matters affecting the religious and moral upbringing of the child. All churches and religious orders, congregations or groups may, conformably to law, establish schools for the purpose of educating children in accordance with the tenets of their religion. All churches may also offer religious instruction in public and private elementary and secondary schools, subject to the requirements of the Constitution and existing laws. 70 The Code also requires that, insofar as may be allowed by the Constitution, the government extend to all churches, without discrimination or preference, every opportunity to exercise their influence and disseminate their teachings. Parents are enjoined to admonish their children to heed the teachings of their Church and to perform their religious duties. Whenever possible, parents shall accompany their children to the regular devotions of their Church and other religious ceremonies.71 R.A. 6734, An Act Providing for the Autonomous Region in Muslim Mindanao , as well as its amendment, R.A. 9054, provides that the active participation of the home, community, religious organizations and other sectors in the total educative process of the child shall be encouraged and supported.72 5. Childs right and parents primary responsibility for the upbringing and development of the child Before the CRC, the guiding principle governing the interaction between the religious belief of a child and the religious guidance of a parent was the ICCPR, which states that:
The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral 73 education of their children in conformity with their own convictions.
69 70
Article XIV, Section 3(1)(3), 1987 Constitution Title IV, Articles 79-81, P.D. 603. 71 Title IV, Articles 82-83, P.D. 603. 72 Article XV, Section 2(5), R.A. 6734, and Article XIV, Section 2(h), R.A. 9054. 73 Part III, Article 18, International Covenant on Civil and Political Rights
In the CRC there is no question that the childs freedom of religion is the starting point and paragraph 2 sets out rights and duties of the parents, as opposed to liberties. This means that ultimately it is the child who is exercising their right; parents can provide direction, but the direction must be consistent with the childs evolving capacities and must be applied in conformity with the whole of the Convention. The discretion of the parents or guardian cannot include mental or physical violence (Article 19) and the views of the child must be taken seriously: if a child can form views then they must be allowed to express them (Articles 12 and 13). There are elements of the CRC that allow for a child to adopt the religion of his or her parents, especially in the pursuit of preserving an identity (Articles 8, 20, and 30), but the wording of Article 14 and the general intent is that the child is free to pursue his or her own religious choices and is not bound to automatically adopt the religion of his or her parents. P.D. 603, the Child Youth and Welfare Code, mandates that providers of child and youth welfare services provide opportunities for religious training to children under its custody, taking into consideration the religious affiliation or express wishes of the child or his/her parents. For such purpose, it shall have a defined policy regarding its religious activities for the information of those wishing to place children in its care.74 6. Discrimination on grounds of religion Article 2 requires States to respect and ensure the rights in the Convention to each child in their jurisdiction without discrimination of any kind, irrespective of the childs or his or her parents or legal guardians ... religion... Thus, under Articles 2 and 14, the child must not suffer discrimination because of the childs right to have a religion, or to have no religion, nor over the childs right to manifest his or her religion. In addition, there must be no discrimination affecting the childs enjoyment of any other rights under the Convention on the ground of the childs, or his or her parents, religion. And Article 2(2) requires States to take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions or beliefs of the childs parents, legal guardians or family members. The Human Rights Committee, in its General Comment on Article 18 of the International Covenant on Civil and Political Rights quoted above, also emphasizes: The fact that a religion is recognized as a state religion or that it is established as official or traditional or that its followers comprise the majority of the population, shall not result in any impairment of the enjoyment of any of the rights under the Covenant... nor in any discrimination against adherents to other religions or non-believers.75
74 75
Title VII, Chapter 1, Article 131, P.D. 603. Human Rights Committee, General Comment No. 22, 1993, HRI/GEN/1/Rev.8, para. 9, p. 196
ILLUSTRATIVE CASE
EBRALINAG ET AL. vs. THE DIVISION SUPERINTENDENT OF SCHOOLS OF CEBU G.R. Nos. 95770 (March 1, 1993) and 95887 (December 29, 1995); 219 SCRA 256 These two special civil actions for certiorari, Mandamus and Prohibition were consolidated because they raise essentially the same issue: whether school children who are members of a religious sect known as Jehovah's Witnesses may be expelled from school (both public and private), for refusing, on account of their religious beliefs, to take part in the flag ceremony which includes playing (by a band) or singing the Philippine national anthem, saluting the Philippine flag and reciting the patriotic pledge. xxx All the petitioners in these two cases were expelled from their classes by the public school authorities in Cebu for refusing to salute the flag, sing the national anthem and recite the patriotic pledge as required by Republic Act No. 1265 of July 11, 1955, and by Department Order No. 8 dated July 21, 1955 of the Department of Education, Culture and Sports (DECS) making the flag ceremony compulsory in all educational institutions. xxx Jehovah's Witnesses admittedly teach their children not to salute the flag, sing the national anthem, and recite the patriotic pledge for they believe that those are "acts of worship" or "religious devotion" (p. 10, Rollo) which they "cannot conscientiously give . . . to anyone or anything except God" (p. 8, Rollo). They feel bound by the Bible's command to "guard ourselves from idols 1 John 5:21" (p. 9, Rollo). They consider the flag as an image or idol representing the State (p. 10, Rollo). They think the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on the State's power and invades the sphere of the intellect and spirit which the Constitution protect against official control (p. 10, Rollo). This is not the first time that the question, of whether the children of Jehovah's Witnesses may be expelled from school for disobedience of R.A. No. 1265 and Department Order No. 8, series of 1955, has been raised before this Court. The same issue was raised in 1959 in Gerona, et al. vs. Secretary of Education, et al., 106 Phil. 2 (1959) and Balbuna, et al. vs. Secretary of Education, 110 Phil. 150 (1960). This Court in the Gerona case upheld the expulsion of the students, thus: The flag is not an image but a symbol of the Republic of the Philippines, an emblem of national sovereignty, of national unity and cohesion and of freedom and liberty which it and the Constitution guarantee and protect. Under a system of complete separation of church and state in the government, the flag is utterly devoid of any religious significance. Saluting the flag does not involve any religious ceremony. The flag salute is no more a religious ceremony than the taking of an oath of office by a public official or by a candidate for admission to the bar. In requiring school pupils to participate in the flag salute, the State thru the Secretary of Education is not imposing a religion or religious belief or a religious test on said students. It is merely enforcing a non-discriminatory school regulation applicable to all alike whether Christian, Moslem, Protestant or Jehovah's Witness. The State is merely carrying out the duty imposed upon it by the Constitution which charges
it with supervision over and regulation of all educational institutions, to establish and maintain a complete and adequate system of public education, and see to it that all schools aim to develop, among other things, civic conscience and teach the duties of citizenship. The children of Jehovah's Witnesses cannot be exempted from participation in the flag ceremony. They have no valid right to such exemption. Moreover, exemption to the requirement will disrupt school discipline and demoralize the rest of the school population which by far constitutes the great majority. The freedom of religious belief guaranteed by the Constitution does not and cannot mean exemption from or non-compliance with reasonable and non-discriminatory laws, rules and regulations promulgated by competent authority. (pp. 2-3). Gerona was reiterated in Balbuna, as follows: The Secretary of Education was duly authorized by the Legislature thru Republic Act 1265 to promulgate said Department Order, and its provisions requiring the observance of the flag salute, not being a religious ceremony but an act and profession of love and allegiance and pledge of loyalty to the fatherland which the flag stands for, does not violate the constitutional provision on freedom of religion. (Balbuna, et al. vs. Secretary of Education, et al., 110 Phil. 150). Republic Act No. 1265 and the ruling in Gerona have been incorporated in Section 28, Title VI, Chapter 9 of the Administrative Code of 1987 (Executive Order No. 292) which took effect on September 21, 1988 (one year after its publication in the Official Gazette, Vol. 63, No. 38 of September 21, 1987). Paragraph 5 of Section 28 gives legislative cachet to the ruling in Gerona, thus: 5. Any teacher or student or pupil who refuses to join or participate in the flag ceremony may be dismissed after due investigation. However, the petitioners herein have not raised in issue the constitutionality of the above provision of the new Administrative Code of 1987. They have targeted only Republic Act No. 1265 and the implementing orders of the DECS. In 1989, the DECS Regional Office in Cebu received complaints about teachers and pupils belonging to the Jehovah's Witnesses, and enrolled in various public and private schools, who refused to sing the Philippine national anthem, salute the Philippine flag and recite the patriotic pledge. Division Superintendent of Schools, Susana B. Cabahug of the Cebu Division of DECS, and Dr. Atty. Marcelo M. Bacalso, Assistant Division Superintendent, recalling this Court's decision in Gerona, issued Division Memorandum No. 108, dated November 17, 1989 (pp. 147-148, Rollo of G.R. No. 95770) directing District Supervisors, High School Principals and Heads of Private Educational institutions as follows: 1. Reports reaching this Office disclose that there are a number of teachers, pupils, students, and school employees in public schools who refuse to salute the Philippine flag or participate in the daily flag ceremony because of some religious belief.
2. Such refusal not only undermines Republic Act No. 1265 and the DECS Department Order No. 8, Series of 1955 (Implementing Rules and Regulations) but also strikes at the heart of the DECS sustained effort to inculcate patriotism and nationalism. xxx xxx xxx
5. Accordingly, teachers and school employees who choose not to participate in the daily flag ceremony or to obey the flag salute regulation spelled out in Department Order No. 8, Series of 1955, shall be considered removed from the service after due process . xxx xxx xxx Cebu school officials resorted to a number of ways to persuade the children of Jehovah's Witnesses to obey the memorandum. In the Buenavista Elementary School, the children were asked to sign an Agreement (Kasabutan) in the Cebuano dialect promising to sing the national anthem, place their right hand on their breast until the end of the song and recite the pledge of allegiance to the flag (Annex D, p. 46, Rollo of G.R. No. 95770 and p. 48, Rollo of G.R. No. 95887), but they refused to sign the "Kasabutan" (p. 20, Rollo of G.R. No. 95770). In Tubigmanok Elementary School, the Teacher-In-Charge, Antonio A. Sangutan, met with the Jehovah's Witnesses' parents, as disclosed in his letter of October 17, 1990, excerpts from which reveal the following: After two (2) fruitless confrontation meetings with the Jehovah's Witnesses' parents on October 2, 1990 and yesterday due to their firm stand not to salute the flag of the Republic of the Philippines during Flag Ceremony and other occasions, as mandated by law specifically Republic Act No. 1265, this Office hereby orders the dropping from the list in the School Register (BPS Form I) of all teachers, all Jehovah Witness pupils from Grade I up to Grade VI effective today. xxx xxx xxx
The expulsion as of October 23, 1990 of the 43 petitioning students of the Daanbantayan National High School, Agujo Elementary School, Calape Barangay National High School, Pinamungajan Provincial High School, Tabuelan Central School, Canasojan Elementary School, Liboron Elementary School, Tagaytay Primary School, San Juan Primary School and Northern Central Elementary School of San Fernando, Cebu, upon order of then Acting Division Superintendent Marcelo Bacalso, prompted some Jehovah's Witnesses in Cebu to appeal to the Secretary of Education Isidro Cario but the latter did not answer their letter. (p. 21, Rollo.) The petition in G.R. No. 95887 was filed by 25 students who were similarly expelled because Dr. Pablo Antopina, who succeeded Susana Cabahug as Division Superintendent of Schools, would not recall the expulsion orders of his predecessor. Instead, he verbally caused the expulsion of some more children of Jehovah's Witnesses. On October 31, 1990, the students and their parents filed these special civil actions for Mandamus, Certiorari and Prohibition alleging that the public respondents acted without or in excess of their jurisdiction and with grave abuse of discretion (1) in ordering their expulsion without prior notice and hearing, hence, in violation of their right to due process, their right to free public education, and their right to freedom of speech, religion and worship (p. 23, Rollo). The petitioners pray that:
c. Judgment be rendered: i. declaring null and void the expulsion or dropping from the rolls of herein petitioners from their respective schools; ii. prohibiting and enjoining respondent from further barring the petitioners from their classes or otherwise implementing the expulsion ordered on petitioners; and iii. compelling the respondent and all persons acting for him to admit and order the re-admission of petitioners to their respective schools. (p. 41, Rollo.) and that pending the determination of the merits of these cases, a temporary restraining order be issued enjoining the respondents from enforcing the expulsion of the petitioners and to re-admit them to their respective classes. On November 27, 1990, the Court issued a temporary restraining order and a writ of preliminary mandatory injunction commanding the respondents to immediately readmit the petitioners to their respective classes until further orders from this Court (p. 57, Rollo). The Court also ordered the Secretary of Education and Cebu District Supervisor Manuel F. Biongcog to be impleaded as respondents in these cases. On May 13, 1991, the Solicitor General filed a consolidated comment to the petitions (p. 98, Rollo) defending the expulsion orders issued by the public respondents on the grounds that: 1. Bizarre religious practices of the Jehovah's Witnesses produce rebellious and anti-social school children and consequently disloyal and mutant Filipino citizens. 2. There are no new and valid grounds to sustain the charges of the Jehovah's Witnesses that the DECS' rules and regulations on the flag salute ceremonies are violative of their freedom of religion and worship. 3. The flag salute is devoid of any religious significance; instead, it inculcates respect and love of country, for which the flag stands. 4. The State's compelling interests being pursued by the DECS' lawful regulations in question do not warrant exemption of the school children of the Jehovah's Witnesses from the flag salute ceremonies on the basis of their own self-perceived religious convictions. 5. The issue is not freedom of speech but enforcement of law and jurisprudence. 6. State's power to regulate repressive and unlawful religious practices justified, besides having scriptural basis. 7. The penalty of expulsion is legal and valid, more so with the enactment of Executive Order No. 292 (The Administrative Code of 1987). Our task here is extremely difficult, for the 30-year old decision of this court in Gerona upholding the flag salute law and approving the expulsion of students who refuse to obey it, is not lightly to be trifled with.
It is somewhat ironic however, that after the Gerona ruling had received legislative cachet by its in corporation in the Administrative Code of 1987, the present Court believes that the time has come to re-examine it. The idea that one may be compelled to salute the flag, sing the national anthem, and recite the patriotic pledge, during a flag ceremony on pain of being dismissed from one's job or of being expelled from school, is alien to the conscience of the present generation of Filipinos who cut their teeth on the Bill of Rights which guarantees their rights to free speech ** and the free exercise of religious profession and worship (Sec. 5, Article III, 1987 Constitution; Article IV, Section 8, 1973 Constitution; Article III, Section 1[7], 1935 Constitution). Religious freedom is a fundamental right which is entitled to the highest priority and the amplest protection among human rights, for it involves the relationship of man to his Creator (Chief Justice Enrique M. Fernando's separate opinion in German vs. Barangan, 135 SCRA 514, 530-531). The right to religious profession and worship has a two-fold aspect, vis., freedom to believe and freedom to act on one's belief. The first is absolute as long as the belief is confined within the realm of thought. The second is subject to regulation where the belief is translated into external acts that affect the public welfare (J. Cruz, Constitutional Law, 1991 Ed., pp. 176-177). Petitioners stress, however, that while they do not take part in the compulsory flag ceremony, they do not engage in "external acts" or behavior that would offend their countrymen who believe in expressing their love of country through the observance of the flag ceremony. They quietly stand at attention during the flag ceremony to show their respect for the right of those who choose to participate in the solemn proceedings (Annex F, Rollo of G.R. No. 95887, p. 50 and Rollo of G.R. No. 95770, p. 48). Since they do not engage in disruptive behavior, there is no warrant for their expulsion. The sole justification for a prior restraint or limitation on the exercise of religious freedom (according to the late Chief Justice Claudio Teehankee in his dissenting opinion in German vs. Barangan, 135 SCRA 514, 517) is the existence of a grave and present danger of a character both grave and imminent, of a serious evil to public safety, public morals, public health or any other legitimate public interest, that the State has a right (and duty) to prevent." Absent such a threat to public safety, the expulsion of the petitioners from the schools is not justified. The situation that the Court directly predicted in Gerona that: The flag ceremony will become a thing of the past or perhaps conducted with very few participants, and the time will come when we would have citizens untaught and uninculcated in and not imbued with reverence for the flag and love of country, admiration for national heroes, and patriotism a pathetic, even tragic situation, and all because a small portion of the school population imposed its will, demanded and was granted an exemption. (Gerona, p. 24.) has not come to pass. We are not persuaded that by exempting the Jehovah's Witnesses from saluting the flag, singing the national anthem and reciting the patriotic pledge, this religious group which admittedly comprises a "small portion of the school population" will shake up our part of the globe and suddenly produce a nation "untaught and uninculcated in and unimbued with reverence for the flag, patriotism, love of country and admiration for national heroes" (Gerona vs. Sec. of Education, 106 Phil. 2, 24). After all, what the petitioners seek only is exemption from the flag ceremony, not exclusion from the public schools where they may study the Constitution, the democratic way of life and form of government, and learn not only the arts, sciences, Philippine history and culture
but also receive training for a vocation of profession and be taught the virtues of "patriotism, respect for human rights, appreciation for national heroes, the rights and duties of citizenship, and moral and spiritual values (Sec. 3[2], Art. XIV, 1987 Constitution) as part of the curricula. Expelling or banning the petitioners from Philippine schools will bring about the very situation that this Court had feared in Gerona. Forcing a small religious group, through the iron hand of the law, to participate in a ceremony that violates their religious beliefs, will hardly be conducive to love of country or respect for dully constituted authorities.
As Mr. Justice Jackson remarked in West Virginia vs. Barnette, 319 U.S. 624 (1943): . . . To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds. . . . When they [diversity] are so harmless to others or to the State as those we deal with here, the price is not too great. But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order. Furthermore, let it be noted that coerced unity and loyalty even to the country, . . . assuming that such unity and loyalty can be attained through coercion is not a goal that is constitutionally obtainable at the expense of religious liberty. A desirable end cannot be promoted by prohibited means. (Meyer vs. Nebraska, 262 U.S. 390, 67 L. ed. 1042, 1046.) Moreover, the expulsion of members of Jehovah's Witnesses from the schools where they are enrolled will violate their right as Philippine citizens, under the 1987 Constitution, to receive free education, for it is the duty of the State to "protect and promote the right of all citizens to quality education . . . and to make such education accessible to all. (Sec. 1, Art. XIV) In Victoriano vs. Elizalde Rope Workers' Union, 59 SCRA 54, 72-75, we upheld the exemption of members of the Iglesia ni Cristo, from the coverage of a closed shop agreement between their employer and a union because it would violate the teaching of their church not to join any labor group: . . . It is certain that not every conscience can be accommodated by all the laws of the land; but when general laws conflict with scruples of conscience, exemptions ought to be granted unless some "compelling state interests" intervenes. (Sherbert vs. Berner, 374 U.S. 398, 10 L. Ed. 2d 965, 970, 83 S. Ct. 1790.) We hold that a similar exemption may be accorded to the Jehovah's Witnesses with regard to the observance of the flag ceremony out of respect for their religious beliefs, however "bizarre" those beliefs may seem to others. Nevertheless, their right not to participate in the flag ceremony does not give them a right to disrupt such patriotic exercises. Paraphrasing the warning cited by this Court in Non vs. Dames II, 185 SCRA 523, 535, while the highest regard must be afforded their right to the free exercise of their religion, "this should not be taken to mean that school authorities are powerless to discipline them" if they should commit breaches of the peace by actions that offend the sensibilities, both religious and patriotic, of other persons. If they quietly stand at attention during the flag ceremony while their classmates and teachers salute the flag, sing the national anthem and recite the patriotic pledge, we do not see how such conduct may
possibly disturb the peace, or pose "a grave and present danger of a serious evil to public safety, public morals, public health or any other legitimate public interest that the State has a right (and duty) to prevent (German vs. Barangan, 135 SCRA 514, 517). Before we close this decision, it is appropriate to recall the Japanese occupation of our country in 1942-1944 when every Filipino, regardless of religious persuasion, in fear of the invader, saluted the Japanese flag and bowed before every Japanese soldier. Perhaps, if petitioners had lived through that dark period of our history, they would not quibble now about saluting the Philippine flag. For when liberation came in 1944 and our own flag was proudly hoisted aloft again, it was a beautiful sight to behold that made our hearts pound with pride and joy over the newly-regained freedom and sovereignty of our nation. Although the Court upholds in this decision the petitioners' right under our Constitution to refuse to salute the Philippine flag on account of their religious beliefs, we hope, nevertheless, that another foreign invasion of our country will not be necessary in order for our countrymen to appreciate and cherish the Philippine flag. WHEREFORE, the petition for certiorari and prohibition is GRANTED. The expulsion orders issued by the public respondents against the petitioners are hereby ANNULLED AND SET ASIDE. The temporary restraining order which was issued by this Court is hereby made permanent. SO ORDERED.
7. Children with disabilities and freedom of religion. The Standard Rules on the Equalization of Opportunities for Persons with Disabilities includes a section on encouraging measures for equal participation in the religious life of their communities by persons with disabilities (rule 12). It proposes that States should encourage the distribution of information on disability matters to religious institutions and organizations. States should also encourage religious authorities to include information on disability policies in the training for religious professions, as well as in religious education programmes. 8. Religion and children deprived of their liberty. The United Nations Rules for the Protection of Juveniles Deprived of their Liberty, which the Committee on the Rights of the Child has commended to States Parties, requires: ... The religious and cultural beliefs, practices and moral concepts of the juvenile should be respected (rule 4). And in detail it states:
Every juvenile should be allowed to satisfy the needs of his or her religious and spiritual life, in particular by attending the services or meetings provided in the detention facility or by conducting his or her own services and having possession of the necessary books or items of religious observance and instruction of his or her denomination. If a detention facility contains a sufficient number of juveniles of a given religion, one or more qualified representatives of that religion should be appointed or approved and allowed to hold regular services and to pay pastoral visits in private to juveniles at their request. Every juvenile should have the right to receive visits from a qualified representative of any religion of his or her choice, as well as the right not to participate in religious services and freely to decline religious education, counseling or indoctrination. (Rule 48)
In its General Comment, quoted above, the Human Rights Committee also emphasized that Persons already subject to certain legitimate constraints, such as prisoners, continue to enjoy their rights to manifest their religion or belief to the fullest extent compatible with the specific nature of the constraint.76 The Rules and Regulations Implementing R.A. 9344, the Juvenile Justice and Welfare Act of 2006, provide that the administration of the juvenile justice and welfare system take into consideration the cultural and religious perspectives of the Filipino people, particularly the indigenous peoples and the Muslims, consistent with the protection of the rights of children belonging to these communities.77 Under the Rules, diversion programs for children in conflict with the law shall be formulated bearing in mind the peculiar circumstances of the child in conflict with the law, including but not limited to the cultural, social, economic and religious circumstances of the child.78
76 77
Human Rights Committee, General Comment No. 22, 1993, HRI/GEN/1/Rev.8, para. 8, p. 196 Rule 2(e), Rules and Regulations Implementing R.A. 9344. 78 Rule 49(a), Rules and Regulations Implementing R.A. 9344.
Childs right to freedom of association and peaceful assembly

Article 15
1. States Parties recognize the rights of the child to freedom of association and to freedom of peaceful assembly. 2. No restrictions may be placed on the exercise of these rights other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.
Together with Articles 12 and 13, the rights to freedom of association and freedom of peaceful assembly promote the child as an active, participating member of society. Article 12 sets out the right of individual children to express their views freely; Article 15 adds rights of collective participation. Previous human rights instruments have promoted these rights for everyone. As with other civil rights, the Committee on the Rights of the Child has encouraged their incorporation into States own legislation with specific reference to childrens rights. The Committee has emphasized that the only restrictions that may be applied are those set out in paragraph 2 of Article 15. 1. Childs right to freedom of association Freedom of association is defined for everyone, including children, in the Universal Declaration of Human Rights. Article 20 enumerates two elements of this freedom: (a) everyone has the right to freedom of peaceful assembly and association, and (b) no one may be compelled to belong to an association. These two elements of freedom of association are also enshrined in the International Covenant on Civil and Political Rights (ICCPR) (Articles 21 and 22) and are added to the right to form and join trade unions. Furthermore, the limited restriction in paragraph 2 of this Article is also asserted in the ICCPR. Although these union rights are not explicitly mentioned in the Convention, they are implied. Furthermore, a limitation on worker and union related rights would not be justified under Article 15(2) and other areas of the Convention because States are required to prevent labor or economic exploitation (Article 32).79 The Committee on the Rights of the Child opines that the rights of a child to freedom of association and peaceful assembly must be reflected in legislation. Further refinement to a childs freedom of association includes the freedom to be associated with not only a group but an individual, so long at that individual does not interfere with the childs other rights. This freedom also includes the ability of a child to form, join and leave an association.80 The Philippine Constitution does not specifically provide that children have the right to freedom of association and peaceful assembly but this is implied in the recognition of this right for all.81 (a) Right to join a union Article 111 of the Child and Youth Welfare Code explicitly sets out that children have the same rights as adults to join a collective bargaining union of their choosing so
79 80
Implementation Handbook for the Convention on the Rights of the Child, page 199. Implementation Handbook for the Convention on the Rights of the Child, page 198. 81 Article III, Section 4, Philippine Constitution.
long as it complies with existing law. The provision further protects children from being threatened or coerced to join, continue or withdraw as members of such union.
(b) Child and youth organizations DISCUSSION POINT NO. 15-1 The Committee recognizes an important role In the Philippines, like in played by non-governmental organization in many countries, a childs promoting youth participation and organization at place in a public both a national and international level.82 In the association will be Guidelines for Periodic Reports (Revised 2005), limited as the child is not States are asked to provide data on the number of at the age of majority or child and youth organizations or associations and the age of legal capacity, the number of members they represent, and also on what can be done about the number of schools with independent student this to meet the councils.83 The Committee has specifically requirements of Article commended the establishment of student 15? organizations in schools and childrens organizations in local municipalities. Various States reports have described legislation providing for schools councils and the structures enabling children to have a say in decisionmaking within their local community.84 The Philippines structure that matches this is the Sangguniang Kabataan (SK) or youth council.85 The rights of youth organizations in the Philippines are set out in Title V, Chapter 2 of the Child and Youth Welfare Code. Article 100 establishes that youth organizations have the same rights and responsibilities as civic associations and Article 101 sets out that, All student organization in public or private schools shall include in their objectives the cultivation of harmonious relations among their members and with the various segments of the community. Furthermore, Chapter 1 of the same Title establishes in Article 85 that one of the duties of the community is to o rganize or encourage movements and activities, for the furtherance of the interests of children and youth. While the childs freedom of association is protected by the Child and Youth Welfare Code, it might also be limited: it is possible that a childs right to freedom of association might be compromised by one of his or her duties that are enumerated in the Child and Youth Welfare Code. For example, one of the responsibilities of the child set out in Article 4 is that they are to Help in the observance of individual human rights, the strengthening of freedom everywhere, the fostering of cooperation among nations in the pursuit of their common aspirations for programs and prosperity, and the furtherance of world peace. That being said there could be organizations that are not seen as
Committee on the Rights of the Child, Report on the forty-third session, September 2006, Day of General Discussion, Recommendations, para. 33) 83 CRC/C/58/Rev.1, Annex, paras. 6 and 7 84 Implementation Handbook for the Convention on the Rights of the Child, page 198. 85 RA 7160 or the Local Government Code of 1991, various sections between s.59 and s. 532.
82
advancing human rights or strengthening freedom and therefore it could be that children are not allowed to associate with such an organization. All student organizations in public or private schools are required to include in their objectives the cultivation of harmonious relations among their members and with various segments of the community.86 Barangay councils are mandated to encourage membership in civic youth associations and help these organizations attain their objectives.87 A youth organization refers to any club, organization or association of individuals below twenty one years of age, which is directly or indirectly involved in carrying out child or youth welfare programs and activities.88 All youth associations shall enjoy the same rights and discharge the same responsibilities as civic associations, permitted under existing laws.89 In proper cases, barangay funds may be used for the payment of the cost of the uniforms and equipment required by these associations.90 Any demonstration sponsored by youth associations, however, shall be conducted in a peaceful and lawful manner.91 2. Childs right to peaceful assembly Article 15 puts an emphasis on the fact that children hold their own fundamental civil rights such as the right to engage in peaceful activities as a group. If there is a restriction on this right it must meet two criteria. First, it must be defined in legislation. Second, it must be one of the restrictions that are mentioned in paragraph 2 of the Article. 3. Restrictions on the childs freedom of association and peaceful assembly As stated above, any restriction on a childs freedom of association or assembly must meet two criteria: (1) they must be set out in legislation and (2) the must be included in the specific reasons mention in the second paragraph of this article. For illustrative purposes look at the following example from the Committees concluding observations on Irans state party report:
The Committee is concerned that although the freedoms of expression and assembly are formally recognized in the Constitution, the exercise of these rights by children are restricted by vaguely worded limitation clauses (i.e. in accordance with Islamic criteria), which potentially exceed the permitted restrictions set out in paragraph 2 of articles 13 and 15 of the Convention. The Committee is concerned at reports of incidents of threats and violence by vigilante groups, such as Ansari-Hezbollah, directed
86 87 88 89 90 91
Article 101, P.D. 603 (1974). Article 89, P.D. 603 (1974). Article 99, P.D. 603 (1974). Article 100, P.D. 603 (1974). Article 90, P.D. 603 (1974). Article 94, P.D. 603 (1974).
at persons seeking to exercise or to promote the exercise of these rights. The Committee recommends that the State Party establish clear criteria to assess whether a given action or expression is in accordance with interpretations of Islamic texts, and consider appropriate and proportionate means to protect public morals while 92 safeguarding the right of every child to freedom of expression and assembly.
In other countries there are laws such as curfews that are designed to keep children at home after a certain time but that in effect limit the childs freedom of association and peaceful assembly after certain hours. Laws that limit the freedom of children, even if it is not the intended consequence of the law, could be beyond the limited restrictions mentioned in paragraph 2 of Article 15.93 4. Childs right and parents primary responsibility for the upbringing and development of the child Article 15 does not contain any references specifically to respecting the right of the parents to give their child direction in exercising his or her rights but this principle is upheld generally under Article 5. Some countries give too much responsibility to parents in that children under a certain age are required to have their parents permission before they join an association. Nowhere in the Convention is there support for this arbitrary restriction.94 Up until a child reaches the age of majority at 18 years old, parents are entitled to exercise an element of control over the freedom of association and peaceful assembly that their children possess. In particular, parental authority includes the right to supervise their [childrens] activities, recreation and association with others, [and] protect them from bad company95 Further duties of the parent are set out in Article 46 of the Child and Youth Welfare Code. It is here that parents are imbued with a duty to supervise the activities of the child. Furthermore, Article 52 mandates that parents shall encourage the child to associate with other children of his own age with whom he can develop common interests of useful and salutary nature. It shall be their duty to know the child's friends and their activities and to prevent him from falling into bad company. The child should not be allowed to stay out late at night to the detriment of his health, studies or morals. This suggests that parents are to have a hand in determining who their children associate with and what values make for appropriate assembly. However, in the same article, parents are encouraged to give the child every opportunity to form or join social, cultural, educational, recreational, civic or religious organizations or movements and other useful community activities, suggesting that parents are to give some deference to their children when deciding whom to associate with.
92 93
Islamic Republic of Iran CRC/C/15/Add.123, paras. 33 and 34 Implementation Handbook for the Convention on the Rights of the Child, page 200. 94 Implementation Handbook for the Convention on the Rights of the Child, page 200. 95 Article 220(4), E.O. 209.
5. Children with disabilities When it comes to freedom of association and peaceful assembly, there is to be no distinction between those children that are disabled and those children that are not. This can be justified in two ways under the Convention: (1) Article 23 is a specific article about children with disabilities and (2) disability is explicitly barred as a ground of discrimination under Article 2. More than these restrictions, the Convention on the Rights of Persons with Disabilities actually assigns positive duties to States they have the responsibility of ensuring that people with disabilities can fully participate in public and political life the same as those without disabilities and to promote an environment where people with disabilities can join or form a non-governmental organization or associations at an international through to local level.96 In the promotion of such organizations, there has been a particular emphasis of the World Programme of Action Concerning Disabled Persons in promoting the establishment and development of associations of people with disabilities.97 6. Children deprived of their liberty The Committee on the Right of the Child has endorsed the United Nations Rules for the Protection of Juveniles Deprived of their Liberty for providing standards for respecting the rights of children who are deprived of their liberty. In general, the Rules require that:
Juveniles deprived of their liberty shall not for any reason related to their status be denied the civil, economic, political, social or cultural rights to which they are entitled under national or international law, and which are compatible with the restriction of 98 liberty Every means should be provided to ensure that juveniles have adequate communication with the outside world, which is an integral part of the right to fair and humane treatment and is essential to the preparation of juveniles for their return to society. Juveniles should be allowed to communicate with their families, friends and other persons or representatives of reputable outside organizations, to leave detention facilities for a visit to their home and family and to receive special permission to leave the 99 detention facility for educational, vocational or other important reasons...
R.A. 9344, the Juvenile Justice and Welfare Act of 2006, mandates that a child in detention shall have the right to maintain contact with his/her family through correspondence and visits, save in exceptional circumstances.100
96 97
Article 29, Convention on the Rights of Persons with Disabilities. Implementation Handbook for the Convention on the Rights of the Child, page 200. 98 Rule 13, United Nations Rules for the Protection of Juveniles Deprived of their Liberty. 99 Rule 59, United Nations Rules for the Protection of Juveniles Deprived of their Liberty. 100 Section 5(d), R.A. 9344.
Childs right to privacy

Article 16
1. No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his her honour or reputation. 2. The child has the right to the protection of the law against such interference or attacks.
Article 16 provides for the right of every child to be protected by the law against arbitrary or unlawful interference with his or her privacy, family, home or correspondence as well as against unlawful attacks on his honor and reputation. Like the previous three articles, Article 16 asserts specifically for the child a fundamental civil right already established for everyone in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. Article 12 of the Universal Declaration of Human Rights uses similar wording (but without the qualifying unlawful before the words interference and attacks). The wording in Article 17 of the International Covenant on Civil and Political Rights, ensuring that no one is subject to such interference, is otherwise identical to the Convention on the Rights of the Child. Article 16 must apply to all children without discrimination. The childs privacy is to be protected in all situations, including within the family, alternative care, and all institutions, facilities and services. In addition, the Article protects the childs family and home from arbitrary or unlawful interference. It raises issues concerning the physical environment in which the child lives, the privacy of his or her relationships and communications with others, including rights to confidential advice and counseling, control of access to information stored about the child in records or files, and so on. Inevitably, childrens rights to privacy within the family vary according to family structures, living conditions and economic and other factors determining the private space available to the child. In addition to Article 16, article 40(2)(b)(vii) requires that a child alleged as or accused of having infringed the penal law should ... have his or her privacy fully respected at all stages of the proceedings; the Committee on the Rights of the Child has suggested this respect should also apply to children in family proceedings and when children are victims of violence. And the Committee has emphasized the importance of the media respecting childrens privacy. 1. Confidential advice for children, medical treatment and children with disabilities The Committee on the Rights of the Child discusses the issues of confidentiality and privacy relating to the health of an adolescent and informed consent in its General Comment on Adolescent health and development in the context of the Convention on the Rights of the Child:
In order to promote the health and development of adolescents, States Parties are also encouraged to respect strictly their right to privacy and confidentiality, including with respect to advice and counseling on health matters (art. 16). Health care providers have an obligation to keep confidential medical information concerning adolescents, bearing in mind the basic principles of the Convention. Such information may only be disclosed with the consent of the adolescent, or in the same situations applying to the violation of an adults confidentiality. Adolescents deemed mature enough to receive
counseling without the presence of a parent or other person are entitled to privacy and 101 may request confidential services, including treatment. xxx With regard to privacy and confidentiality, and the related issue of informed consent to treatment, States Parties should (a) enact laws or regulations to ensure that confidential advice concerning treatment is provided to adolescents so that they can give their informed consent. Such laws or regulations should stipulate an age for this process, or refer to the evolving capacity of the child; and (b) provide training for health personnel on the rights of adolescents to privacy and confidentiality, to be informed about planned 102 treatment and to give their informed consent to treatment.
Under the original Guidelines for Periodic Reports the Committee wanted to know if there was any age established in legislation at which a child had a right to legal and medical counseling without parental consent. Usually professions that involve confidentiality will have codes or regulations that govern the confidential relationship between the professional and his or her client; however this is sometimes difficult to apply when the client is a child. It is in situations like this that the Convention can be used as a guide.103 2. Arbitrary or unlawful interference
Another useful point of information about privacy, even though it does not relate directly to children, comes from the Human Rights Committee. In 1998 this Committee issued a detailed General Comment on Article 17 of the International Covenant on Civil and Political Rights (ICCPR), which concerns the right to privacy. In this Comment the Committee makes a number of important observations about what is contained in the right to privacy. First, interference from privacy can come from actors other than the state. This puts a positive duty on the state to take preventative measures (including legislative measures) to prevent this interference. Second, if there is interference with privacy then it must be established in the law and can never be arbitrary. Any interference must comply with the provisions, aims and objectives of the ICCPR and it must be reasonable in the given circumstances.104 (a) Childs privacy The Constitution protects the rights of citizens, including children, to privacy and sanctity of their persons and homes against State intrusions. Search and arrest warrants shall not be issued except only upon a showing of probable cause.105 The right to privacy extends to communication and correspondence, which cannot be interfered with except upon lawful order of the court or when public safety or
101 102
Committee on the Rights of the Child, General Comment No. 4, 2003, CRC/GC/2003/4, para. 11 Committee on the Rights of the Child, General Comment No. 4, 2003, CRC/GC/2003/4, para. 33 103 Implementation Handbook for the Convention on the Rights of the Child, page 205. 104 Implementation Handbook for the Convention on the Rights of the Child, page 205. 105 Article III, Section 3, 1987 Constitution.
order requires so.106 Any evidence obtained in violation of privacy is inadmissible in any proceeding.107 1. States informational requirements Usually the State or an agency or institution such as a school acting on behalf of the State will keep records and reports on children, usually in the areas of health, education, social services and juvenile justice. The childs right to privacy must ensure that the government sets out four requirements in legislation. The first is that the child must know any information that is stored about him or her. Second, the child had the right to know why the information is being stored and who is responsible for the information. Third, the child must be able to access the information regardless of how it is stored (manually or electronically). Fourth, the child must be able to challenge any information that is stored about him or her and change the information if it becomes necessary. In some cases this may require the establishment of an independent body for hearing such challenges and affecting change. Finally, the information should be controlled and any access that is allowed must be in line with the whole Convention. Furthermore, the child had a right to know who has access to information on him or her. The Human Rights Committee make the following comment about a similar provision in the ICCPR:
The gathering and holding of personal information on computers, data banks and other devices, whether by public authorities or private individuals or bodies, must be regulated by law. Effective measures have to be taken by States to ensure that information concerning a persons private life does not reach the hands of persons who are not authorized by law to receive, process and use it, and is never used for purposes incompatible with the Covenant. In order to have the most effective protection of his private life, every individual should have the right to ascertain in an intelligible form, whether, and if so, what personal data is stored in automatic data files, and for what purposes. Every individual should also be able to ascertain which public authorities or private individuals or bodies control or may control their files. If such files contain incorrect personal data or have been collected or processed contrary to the provisions of 108 the law, every individual should have the right to request rectification or elimination.
When it comes to files used in juvenile justice systems, the Beijing Rules require the following:
Records 21.1 Records of juvenile offenders shall be kept strictly confidential and closed to third parties. Access to such records shall be limited to persons directly concerned with the disposition of the case at hand or other duly authorized persons. 21.2 Records of juvenile offenders shall not be used in adult proceedings in subsequent cases involving the same offender.
106 107
Article III, Section 3(1), 1987 Constitution. Article III, Section 3(2), 1987 Constitution. 108 Human Rights Committee, General Comment No. 16, 1988, HRI/GEN/1/Rev.8, para. 10, p. 183
Commentary The rule attempts to achieve a balance between conflicting interests connected with records or files: those of the police, prosecution and other authorities in improving control versus the interests of the juvenile offender. (See also rule 8.) "Other duly 109 authorized persons" would generally include among others, researchers.
The United Nations Rules for the Protection of Juveniles Deprived of their Liberty provides additional detail:
V. The Management of Juvenile Facilities A. Records Rule 19 - All reports, including legal records, medical records and records of disciplinary proceedings, and all other documents relating to the form, content and details of treatment, should be placed in a confidential individual file, which should be kept up to date, accessible only to authorized persons and classified in such a way as to be easily understood. Where possible, every juvenile should have the right to contest any fact or opinion contained in his or her file so as to permit rectification of inaccurate, unfounded or unfair statements. In order to exercise this right, there should be procedures that allow an appropriate third party to have access to and to consult the file on request. Upon release, the records of juveniles shall be sealed, and, at an appropriate time, 110 expunged.
The Committee on the Rights of the Child makes a special note of specific situations where they feel that a States inf ormational requirements are interfering with privacy rights. One example is a provision that requires the recording of the childs or his or her parents religion in relation to religious education in school. Another example is that the State requires this information on childrens graduation certificates, identity cards, and passports (on which ethnic origin is also recorded). The Civil Registry Law also requires that the religion of a newborn childs parents be listed on the birth certificate,111 though the Committee has made no comment on this. For children of Islamic parentage, the Rules and Regulations Governing Registration of Acts and Events Concerning Civil Status of Muslim Filipinos require that Registration of births of Muslim be governed by pertinent provisions of Administrative Order No. 1, Series of 1993 supplemented by the following specific rules: 1. Regardless of the period of intra-uterine life of the fetus when born alive, however briefly, shall be recorded in the Register of Births as live births. 2. Upon receiving the Certificate of Live Birth (Mun. Form 102, Revised January 1993), the city/municipal civil registrar (C/MCR) shall examine Item No. 15 (Religion of the Father). In case the entry therein is "Islam" or "Moslem" or "Muslim", the C/MCR shall require the informant to accomplish or to give the following data in order to accomplish the Municipal Form No. 102 Attachment: Name of the child, date of birth (hijrah), and the ethnic affiliation.
109 110
United Nations Standard Minimum Rules for the Administration of Juvenile Justice or Beijing Rules United Nations Rules for the Protection of Juveniles Deprived of their Liberty 111 R.A. 3753, Section 5(c).
3. The Municipal Form No. 102 and the attachment shall be permanently stapled together and shall constitute as the record of birth of a Muslim.112 It is possible that any privacy concerns of the aforementioned provisions on birth records are mitigated by Article 7 of the Child and Youth Welfare Code where it is set out that a persons birth records are to be kept confidential except for a limited number of circumstances. These circumstances can be a request by the person himself or herself, by the persons parents or guardian if the child is a minor or by an administrative or judicial official when it is essential that this officer determines the parents of a minor.113
2. Adoption and alternative care Confidentiality concerning adoption is discussed in Article 38 of the same Code where it is set out that all adoption cases are to be confidential and not open to the public. Furthermore, any records or materials of the court, the Department of Social Welfare or any other party participating in the adoption are to be kept confidential. This confidentiality is subject to the same exception as Article 7.114 In the case of local adoption, all hearings in adoption cases, after compliance with the jurisdictional requirements, shall be confidential and shall not be open to the public. All records, books and papers relating to the adoption cases in the files of the court, the Department, or any other agency or institution participating in the adoption proceedings shall be kept strictly confidential. If the court finds that the disclosure of the information to a third person is necessary for security reasons or for purposes connected with or arising out of the adoption and will be for the best interests of the adoptee, the court may, upon proper motion, order the necessary information to be released, restricting the purposes for which it may be used.115 Similarly, in inter-country adoption, the childs right to privacy is recognized. Section 53, Article IX, of Republic Act No.8043 (The Inter-Country Adoption Act of 1995) states that the application, together with all the records, documents, and communications relating to adoption and its processes, shall be confidential. No copy thereof as well as any information shall be released without written authority from the Board or the written request of either the child/adopted person, with appropriate guidance and counseling, or his duly authorized representative, spouse, parent or parents, direct descendants, or guardian or legal institution in charge of the adopted person, if a minor; or the court or proper public official; or the nearest kin, in case of the death of the child/adopted person.
112 113
OCRG Administrative Order NO. 2-93, Rule 5. Article 7, Presidential Decree No. 603, The Child and Youth Welfare Code, 1974 114 Article 38, Presidential Decree No. 603, The Child and Youth Welfare Code, 1974 115 Section 18, A.M. No. 02-6-02 SC, Rule on Adoption.
If a child is no longer with his or her family and instead is with a licensed Child and Youth Welfare Agency then there are again separate requirements on confidentiality. The licensee is to keep confidential records on every child in its study and only make these records available to persons authorized by the Department of Social Welfare or the proper court.116 3. Education and school admission There is also the issue of how the rights of a child in the Philippines relate to their education and admission to school. Article 28 of the Convention on the Rights of the Child recognizes a childs right to education and this is elaborated on by the Committee on the Rights of the Child when they point out that the enjoyment of other rights should not be undermined but enforced: Children do not lose their human rights by virtue of passing through the school gates.117 However, the Comprehensive Dangerous Drugs Act of 2002 allows for random drug testing which could be considered an infringement on the right to privacy. In the following case the Supreme Court makes two important comments. The first is an endorsement of a U.S. case where it was decided that, school children, while not shedding their constitutional right s at the school gate, have less privacy rights and the second is that the right to enroll [in school] is not absolute; it is subject to fair, reasonable, and equitable requirements.
ILLUSTRATIVE CASE
SOCIAL JUSTICE SOCIETY VS. DANGEROUS DRUGS BOARD & PHILIPPINES DRUG ENFORCEMENT AGENCY, G.R. NO. 157870, NOVEMBER 3, 2008 ATTY. MANUEL J. LASERNA, JR. VS. DANGEROUS DRUGS BOARD, ET AL., G.R. NO. 158633 AQUILINO Q. PIMENTEL, JR. VS. COMMISSION ON ELECTIONS, G.R. NO. 161658 In these kindred petitions, the constitutionality of Section 36 of Republic Act No. (RA) 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002, insofar as it requires mandatory drug testing of candidates for public office, students of secondary and tertiary schools, officers and employees of public and private offices, and persons charged before the prosecutor's office with certain offenses, among other personalities, is put in issue. As far as pertinent, the challenged section reads as follows: SEC. 36. Authorized Drug Testing. - Authorized drug testing shall be done by any government forensic laboratories or by any of the drug testing laboratories accredited and monitored by the DOH to safeguard the quality of the test results. x x x The drug testing shall employ, among others, two (2) testing methods, the screening test which will determine the positive result as well as the type of drug used and the confirmatory test which will confirm a positive screening test. x x x The following shall be subjected to undergo drug testing:
116 117
Article 125, Presidential Decree No. 603, The Child and Youth Welfare Code, 1974 Committee on the Rights of the Child, General Comment No.1, 2001, CRC/GC/2001/1, para. 8.
xxx
xxx
xxx
(c) Students of secondary and tertiary schools. - Students of secondary and tertiary schools shall, pursuant to the related rules and regulations as contained in the school's student handbook and with notice to the parents, undergo a random drug testing x x x; xxx xxx xxx
In addition to the above stated penalties in this Section, those found to be positive for dangerous drugs use shall be subject to the provisions of Section 15 of this Act. xxx xxx xxx
G.R. No. 157870 (Social Justice Society v. Dangerous Drugs Board and Philippine Drug Enforcement Agency) In its Petition for Prohibition under Rule 65, petitioner Social Justice Society (SJS), a registered political party, seeks to prohibit the Dangerous Drugs Board (DDB) and the Philippine Drug Enforcement Agency (PDEA) from enforcing paragraphs (c), (d), (f), and (g) of Sec. 36 of RA 9165 on the ground that they are constitutionally infirm. For one, the provisions constitute undue delegation of legislative power when they give unbridled discretion to schools and employers to determine the manner of drug testing. For another, the provisions trench in the equal protection clause inasmuch as they can be used to harass a student or an employee deemed undesirable. And for a third, a person's constitutional right against unreasonable searches is also breached by said provisions. G.R. No. 158633 (Atty. Manuel J. Laserna, Jr. v.Dangerous Drugs Board and Philippine Drug Enforcement Agency) Petitioner Atty. Manuel J. Laserna, Jr., as citizen and taxpayer, also seeks in his Petition for Certiorari and Prohibition under Rule 65 that Sec. 36(c), (d), (f), and (g) of RA 9165 be struck down as unconstitutional for infringing on the constitutional right to privacy, the right against unreasonable search and seizure, and the right against selfincrimination, and for being contrary to the due process and equal protection guarantees. xxx xxx xxx
The Consolidated Issues The xxx (2) Are paragraphs (c), (d), (f), and (g) of Sec. 36, RA 9165 unconstitutional? Specifically, do these paragraphs violate the right to privacy, the right against unreasonable searches and seizure, and the equal protection clause? Or do they constitute undue delegation of legislative power? xxx SJS Petition (Constitutionality of Sec. 36[c], [d], [f], and [g] of RA 9165) principal issues before us are as follows:
The drug test prescribed under Sec. 36(c), (d), and (f) of RA 9165 for secondary and tertiary level students and public and private employees, while mandatory, is a random and suspicionless arrangement. The objective is to stamp out illegal drug and safeguard in the process "the well being of [the] citizenry, particularly the youth, from the harmful effects of dangerous drugs." This statutory purpose, per the policy-declaration portion of the law, can be achieved via the pursuit by the state of "an intensive and unrelenting campaign against the trafficking and use of dangerous drugs x x x through an integrated system of planning, implementation and enforcement of anti-drug abuse policies, programs and projects." The primary legislative intent is not criminal prosecution, as those found positive for illegal drug use as a result of this random testing are not necessarily treated as criminals. They may even be exempt from criminal liability should the illegal drug user consent to undergo rehabilitation. [xxx] xxx School children, the US Supreme Court noted, are most vulnerable to the physical, psychological, and addictive effects of drugs. Maturing nervous systems of the young are more critically impaired by intoxicants and are more inclined to drug dependency. Their recovery is also at a depressingly low rate. The right to privacy has been accorded recognition in this jurisdiction as a facet of the right protected by the guarantee against unreasonable search and seizure under Sec. 2, Art. III of the Constitution. But while the right to privacy has long come into its own, this case appears to be the first time that the validity of a state-decreed search or intrusion through the medium of mandatory random drug testing among students and employees is, in this jurisdiction, made the focal point. Thus, the issue tendered in these proceedings is veritably one of first impression. US jurisprudence is, however, a rich source of persuasive jurisprudence. With respect to random drug testing among school children, we turn to the teachings of Vernonia School District 47J v. Acton (Vernonia) and Board of Education of Independent School District No. 92 of Pottawatomie County, et al. v. Earls, et al. (Board of Education), both fairly pertinent US Supreme Courtdecided cases involving the constitutionality of governmental search. In Vernonia, school administrators in Vernonia, Oregon wanted to address the drug menace in their respective institutions following the discovery of frequent drug use by school athletes. After consultation with the parents, they required random urinalysis drug testing for the school's athletes. James Acton, a high school student, was denied participation in the football program after he refused to undertake the urinalysis drug testing. Acton forthwith sued, claiming that the school's drug testing policy violated, inter alia, the Fourth Amendment of the US Constitution. The US Supreme Court, in fashioning a solution to the issues raised in Vernonia, considered the following: (1) schools stand in loco parentis over their students; (2) school children, while not shedding their constitutional rights at the school gate, have less privacy rights; (3) athletes have less privacy rights than non-athletes since the former observe communal undress before and after sports events; (4) by joining the sports activity, the athletes voluntarily subjected themselves to a higher degree of school supervision and regulation; (5) requiring urine samples does not invade a student's privacy since a student need not undress for this kind of drug testing; and (6) there is need for the drug testing because of the dangerous effects of illegal drugs on the young. The US Supreme Court held that the policy constituted reasonable search under the
Fourth and 14th Amendments and declared the random drug-testing policy constitutional. In Board of Education, the Board of Education of a school in Tecumseh, Oklahoma required a drug test for high school students desiring to join extra-curricular activities. Lindsay Earls, a member of the show choir, marching band, and academic team declined to undergo a drug test and averred that the drug-testing policy made to apply to non-athletes violated the Fourth and 14th Amendments. As Earls argued, unlike athletes who routinely undergo physical examinations and undress before their peers in locker rooms, non-athletes are entitled to more privacy. The US Supreme Court, citing Vernonia, upheld the constitutionality of drug testing even among non-athletes on the basis of the school's custodial responsibility and authority. In so ruling, said court made no distinction between a non-athlete and an athlete. It ratiocinated that schools and teachers act in place of the parents with a similar interest and duty of safeguarding the health of the students. And in holding that the school could implement its random drug-testing policy, the Court hinted that such a test was a kind of search in which even a reasonable parent might need to engage. In sum, what can reasonably be deduced from the above two cases and applied to this jurisdiction are: (1) schools and their administrators stand in loco parentis with respect to their students; (2) minor students have contextually fewer rights than an adult, and are subject to the custody and supervision of their parents, guardians, and schools; (3) schools, acting in loco parentis, have a duty to safeguard the health and well-being of their students and may adopt such measures as may reasonably be necessary to discharge such duty; and (4) schools have the right to impose conditions on applicants for admission that are fair, just, and non-discriminatory. Guided by Vernonia and Board of Education, the Court is of the view and so holds that the provisions of RA 9165 requiring mandatory, random, and suspicionless drug testing of students are constitutional. Indeed, it is within the prerogative of educational institutions to require, as a condition for admission, compliance with reasonable school rules and regulations and policies. To be sure, the right to enroll is not absolute; it is subject to fair, reasonable, and equitable requirements. The Court can take judicial notice of the proliferation of prohibited drugs in the country that threatens the well-being of the people, particularly the youth and school children who usually end up as victims. Accordingly, and until a more effective method is conceptualized and put in motion, a random drug testing of students in secondary and tertiary schools is not only acceptable but may even be necessary if the safety and interest of the student population, doubtless a legitimate concern of the government, are to be promoted and protected. To borrow from Vernonia, "[d]eterring drug use by our Nation's schoolchildren is as important as enhancing efficient enforcement of the Nation's laws against the importation of drugs"; the necessity for the State to act is magnified by the fact that the effects of a drug-infested school are visited not just upon the users, but upon the entire student body and faculty. Needless to stress, the random testing scheme provided under the law argues against the idea that the testing aims to incriminate unsuspecting individual students. Just as in the case of secondary and tertiary level students, the mandatory but random drug test prescribed by Sec. 36 of RA 9165 for officers and employees of public and private offices is justifiable, albeit not exactly for the same reason. The Court notes in this regard that petitioner SJS, other than saying that "subjecting almost everybody to drug testing, without probable cause, is unreasonable, an unwarranted intrusion of the individual right to privacy," has failed to show how the mandatory, random, and
suspicionless drug testing under Sec. 36(c) and (d) of RA 9165 violates the right to privacy and constitutes unlawful and/or unconsented search under Art. III, Secs. 1 and 2 of the Constitution. Petitioner Laserna's lament is just as simplistic, sweeping, and gratuitous and does not merit serious consideration. Consider what he wrote without elaboration: The US Supreme Court and US Circuit Courts of Appeals have made various rulings on the constitutionality of mandatory drug tests in the school and the workplaces. The US courts have been consistent in their rulings that the mandatory drug tests violate a citizen's constitutional right to privacy and right against unreasonable search and seizure. They are quoted extensively hereinbelow. The essence of privacy is the right to be left alone. In context, the right to privacy means the right to be free from unwarranted exploitation of one's person or from intrusion into one's private activities in such a way as to cause humiliation to a person's ordinary sensibilities. And while there has been general agreement as to the basic function of the guarantee against unwarranted search, "translation of the abstract prohibition against `unreasonable searches and seizures' into workable broad guidelines for the decision of particular cases is a difficult task," to borrow from C. Camara v. Municipal Court. Authorities are agreed though that the right to privacy yields to certain paramount rights of the public and defers to the state's exercise of police power. As the warrantless clause of Sec. 2, Art III of the Constitution is couched and as has been held, "reasonableness" is the touchstone of the validity of a government search or intrusion. And whether a search at issue hews to the reasonableness standard is judged by the balancing of the government-mandated intrusion on the individual's privacy interest against the promotion of some compelling state interest. In the criminal context, reasonableness requires showing of probable cause to be personally determined by a judge. Given that the drug-testing policy for employees (and students for that matter) under RA 9165 is in the nature of administrative search needing what was referred to in Vernonia as "swift and informal disciplinary procedures," the probable-cause standard is not required or even practicable. Be that as it may, the review should focus on the reasonableness of the challenged administrative search in question. The first factor to consider in the matter of reasonableness is the nature of the privacy interest upon which the drug testing, which effects a search within the meaning of Sec. 2, Art. III of the Constitution, intrudes. In this case, the office or workplace serves as the backdrop for the analysis of the privacy expectation of the employees and the reasonableness of drug testing requirement. The employees' privacy interest in an office is to a large extent circumscribed by the company's work policies, the collective bargaining agreement, if any, entered into by management and the bargaining unit, and the inherent right of the employer to maintain discipline and efficiency in the workplace. Their privacy expectation in a regulated office environment is, in fine, reduced; and a degree of impingement upon such privacy has been upheld. Just as defining as the first factor is the character of the intrusion authorized by the challenged law. Reduced to a question form, is the scope of the search or intrusion clearly set forth, or, as formulated in Ople v. Torres, is the enabling law authorizing a search "narrowly drawn" or "narrowly focused"? The poser should be answered in the affirmative. For one, Sec. 36 of RA 9165 and its implementing rules and regulations (IRR), as couched, contain provisions specifically directed towards preventing a situation that would unduly embarrass the
employees or place them under a humiliating experience. While every officer and employee in a private establishment is under the law deemed forewarned that he or she may be a possible subject of a drug test, nobody is really singled out in advance for drug testing. The goal is to discourage drug use by not telling in advance anyone when and who is to be tested. And as may be observed, Sec. 36(d) of RA 9165 itself prescribes what, in Ople, is a narrowing ingredient by providing that the employees concerned shall be subjected to "random drug test as contained in the company's work rules and regulations x x x for purposes of reducing the risk in the work place." For another, the random drug testing shall be undertaken under conditions calculated to protect as much as possible the employee's privacy and dignity. As to the mechanics of the test, the law specifies that the procedure shall employ two testing methods, i.e., the screening test and the confirmatory test, doubtless to ensure as much as possible the trustworthiness of the results. But the more important consideration lies in the fact that the test shall be conducted by trained professionals in access-controlled laboratories monitored by the Department of Health (DOH) to safeguard against results tampering and to ensure an accurate chain of custody. In addition, the IRR issued by the DOH provides that access to the drug results shall be on the "need to know" basis; that the "drug test result and the records shall be [kept] confidential subject to the usual accepted practices to protect the confidentiality of the test results." Notably, RA 9165 does not oblige the employer concerned to report to the prosecuting agencies any information or evidence relating to the violation of the Comprehensive Dangerous Drugs Act received as a result of the operation of the drug testing. All told, therefore, the intrusion into the employees' privacy, under RA 9165, is accompanied by proper safeguards, particularly against embarrassing leakages of test results, and is relatively minimal. To reiterate, RA 9165 was enacted as a measure to stamp out illegal drug in the country and thus protect the well-being of the citizens, especially the youth, from the deleterious effects of dangerous drugs. The law intends to achieve this through the medium, among others, of promoting and resolutely pursuing a national drug abuse policy in the workplace via a mandatory random drug test. To the Court, the need for drug testing to at least minimize illegal drug use is substantial enough to override the individual's privacy interest under the premises. The Court can consider that the illegal drug menace cuts across gender, age group, and social- economic lines. And it may not be amiss to state that the sale, manufacture, or trafficking of illegal drugs, with their ready market, would be an investor's dream were it not for the illegal and immoral components of any of such activities. The drug problem has hardly abated since the martial law public execution of a notorious drug trafficker. The state can no longer assume a laid back stance with respect to this modern-day scourge. Drug enforcement agencies perceive a mandatory random drug test to be an effective way of preventing and deterring drug use among employees in private offices, the threat of detection by random testing being higher than other modes. The Court holds that the chosen method is a reasonable and enough means to lick the problem. Taking into account the foregoing factors, i.e., the reduced expectation of privacy on the part of the employees, the compelling state concern likely to be met by the search, and the well-defined limits set forth in the law to properly guide authorities in the conduct of the random testing, we hold that the challenged drug test requirement is, under the limited context of the case, reasonable and, ergo, constitutional. Like their counterparts in the private sector, government officials and employees also labor under reasonable supervision and restrictions imposed by the Civil Service law and other laws on public officers, all enacted to promote a high standard of ethics in the
public service. And if RA 9165 passes the norm of reasonableness for private employees, the more reason that it should pass the test for civil servants, who, by constitutional command, are required to be accountable at all times to the people and to serve them with utmost responsibility and efficiency. Petitioner SJS' next posture that Sec. 36 of RA 9165 is objectionable on the ground of undue delegation of power hardly commends itself for concurrence. Contrary to its position, the provision in question is not so extensively drawn as to give unbridled options to schools and employers to determine the manner of drug testing. Sec. 36 expressly provides how drug testing for students of secondary and tertiary schools and officers/employees of public/private offices should be conducted. It enumerates the persons who shall undergo drug testing. In the case of students, the testing shall be in accordance with the school rules as contained in the student handbook and with notice to parents. On the part of officers/employees, the testing shall take into account the company's work rules. In either case, the random procedure shall be observed, meaning that the persons to be subjected to drug test shall be picked by chance or in an unplanned way. And in all cases, safeguards against misusing and compromising the confidentiality of the test results are established. Lest it be overlooked, Sec. 94 of RA 9165 charges the DDB to issue, in consultation with the DOH, Department of the Interior and Local Government, Department of Education, and Department of Labor and Employment, among other agencies, the IRR necessary to enforce the law. In net effect then, the participation of schools and offices in the drug testing scheme shall always be subject to the IRR of RA 9165. It is, therefore, incorrect to say that schools and employers have unchecked discretion to determine how often, under what conditions, and where the drug tests shall be conducted. The validity of delegating legislative power is now a quiet area in the constitutional landscape. In the face of the increasing complexity of the task of the government and the increasing inability of the legislature to cope directly with the many problems demanding its attention, resort to delegation of power, or entrusting to administrative agencies the power of subordinate legislation, has become imperative, as here. Laserna Petition (Constitutionality of Sec. 36[c], [d], [f], and [g] of RA 9165) Unlike the situation covered by Sec. 36(c) and (d) of RA 9165, the Court finds no valid justification for mandatory drug testing for persons accused of crimes. In the case of students, the constitutional viability of the mandatory, random, and suspicionless drug testing for students emanates primarily from the waiver by the students of their right to privacy when they seek entry to the school, and from their voluntarily submitting their persons to the parental authority of school authorities. In the case of private and public employees, the constitutional soundness of the mandatory, random, and suspicionless drug testing proceeds from the reasonableness of the drug test policy and requirement. We find the situation entirely different in the case of persons charged before the public prosecutor's office with criminal offenses punishable with six (6) years and one (1) day imprisonment. The operative concepts in the mandatory drug testing are "randomness" and "suspicionless." In the case of persons charged with a crime before the prosecutor's office, a mandatory drug testing can never be random or suspicionless. The ideas of randomness and being suspicionless are antithetical to their being made defendants in a criminal complaint. They are not randomly picked; neither are they beyond suspicion. When persons suspected of committing a crime are charged, they are
singled out and are impleaded against their will. The persons thus charged, by the bare fact of being haled before the prosecutor's office and peaceably submitting themselves to drug testing, if that be the case, do not necessarily consent to the procedure, let alone waive their right to privacy. To impose mandatory drug testing on the accused is a blatant attempt to harness a medical test as a tool for criminal prosecution, contrary to the stated objectives of RA 9165. Drug testing in this case would violate a persons' right to privacy guaranteed under Sec. 2, Art. III of the Constitution. Worse still, the accused persons are veritably forced to incriminate themselves. WHEREFORE, the Court resolves to GRANT the petition in G.R. No. 161658 and declares Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 as UNCONSTITUTIONAL; and to PARTIALLY GRANT the petition in G.R. Nos. 157870 and 158633 by declaring Sec. 36(c) and (d) of RA 9165 CONSTITUTIONAL, but declaring its Sec. 36(f) UNCONSTITUTIONAL. All concerned agencies are, accordingly, permanently enjoined from implementing Sec. 36(f) and (g) of RA 9165. No costs. SO ORDERED.
(b) Childs family The Committee has taken a broad interpretation on the meaning of family. The term includes parents and, according to Article 5, members of the extended family as determined by local custom.118 This broad interpretation is also endorsed by the Human Rights Committee: Regarding the term family, the objectives of the Covenant require that for purposes of article 17 this term be given a broad interpretation to include all those comprising the family as understood in the society of the State Party concerned...119 Article 16 extends protection to siblings, grandparents or anyone that might be important to the child. In order for interference with the privacy of a childs family member to be legitimate, it must meet the same criteria as would be required for interference with the privacy of the child directly. In other words, (a) any interference must be set out in law; (b) it must not be arbitrary; (c) it must be compatible with the other principles and provisions of the convention; and (d) it must be reasonable in the particular circumstances. Any hearings on guardianship or any custody proceedings can be kept confidential at the discretion of the court. This means that the hearing or proceedings would be closed to the public and the records would be private and not to be released without the approval of the court.120 The law of the Philippines also protects the privacy of such matters concerning the internal affairs concerning the child and his or her family. As stated in the RA 8369, or the Family Courts Act of 1997, all hearings and conciliation of the child and family cases shall be treated in a manner consistent with the promotion of the child's and
118 119
Implementation Handbook for the Convention on the Rights of the Child, page 210. Human Rights Committee, General Comment No. 16, 1988, HRI/GEN/1/Rev.8, para. 5, p. 182 120 Article 25, Presidential Decree No. 603, The Child and Youth Welfare Code, 1974
family's dignity and worth, and shall respect their privacy at all stages of the proceedings. Records of the cases shall be dealt with utmost confidentiality and the identity of parties shall not be divulged unless necessary and with authority of the judge121. (c) Childs home A definition of home is provided to us by the Human Rights Committee: The term home in English ... is to be understood to indicate the place where a person resides or carries out his usual occupation. Therefore the word home will have different meanings for different children, which might include various categories of residential institutions, boarding schools, places of detention, long-stay hospitals, etc. The Committee further makes two additional comments that help to determine how privacy and home are related. The first is that the search of a home should be limited to a search for necessary evidence. The second is that such searches are not to be tantamount to harassment.122 If there is to be a search of a childs home or the eviction of a family then it must comply with the four points outlined above. Also, a childs right cannot be unreasonably breached if he or she is in alternative care and is being transferred to a new home of if his or her place or residence is being closed. In such institutions there are many opportunities for a childs right to privacy to be breached whether by the design of the institution, overcrowding, lack of supervision or the use of video surveillance.123 If institutions that are home to children wish to avoid violating the child s right to privacy then they should be designed with minimum requirements on space including personal space for the children, a minimum requirement on comfort room facilities, etc. This is highlighted in Article 3(3) of the Convention on the Rights of the Child in the requirements that institutions, services and facilities responsible for the care or protection of children shall conform to the standards established by competent authorities. Standards must reflect the provisions of the Convention, including the childs right to privacy, without discrimination.124 (d) Childs correspondence Correspondence to or from a child must follow the four points listed above and children must have access to an instrument for lodging complaints and receiving a remedy. This is elaborated on by the Human Rights Committee where they say, the integrity and confidentiality of correspondence should be guaranteed de jure and de facto. Correspondence should be delivered to the addressee without interception and without being opened or otherwise read. Surveillance, whether electronic or otherwise,
121 122
Republic Act 8369, Sec 12 Human Rights Committee, General Comment No. 16, 1988, HRI/GEN/1/Rev.8, para. 8, p. 182 123 Implementation Handbook for the Convention on the Rights of the Child, page 210. 124 Implementation Handbook for the Convention on the Rights of the Child, page 207.
interceptions of telephonic, telegraphic and other forms of communication, wire-tapping and recording of conversations should be prohibited...125 If a child is deprived of his or her liberty then he or she still has the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances. This is explained further in Rule 61 of the United Nations Rules for the Protection of Juveniles Deprived of their Liberty states:
Every juvenile should have the right to communicate in writing or by telephone at least twice a week with the person of his or her choice, unless legally restricted, and should be assisted as necessary in order to effectively to enjoy this right. Every juvenile should have the right to receive correspondence.
4. Unlawful attacks on childs honor or reputation It is currently the norm for countries to protect their citizens from verbal attacks (slander) and attacks transmitted through writing or the media (libel). Under this Article the child requires this same protection and a remedy against those responsible. The Human Rights Committee makes the following comment based on the identical provision under the ICCPR:
Article 17 affords protection to personal honour and reputation and States are under an obligation to provide adequate legislation to that end. Provision must also be made for everyone effectively to be able to protect himself against any unlawful attacks 126 that do occur and to have an effective remedy against those responsible.
The Committee on the Rights of the Child, on its 1996 Day of General Discussion on The child and the media, discussed how the media is responsible for the reputation and honor of children as a demographic:
In their reporting the media give an image of the child; they reflect and influence perceptions about who children are and how they behave. This image could create and convey respect for young people; however, it could also spread prejudices and stereotypes which may have a negative influence on public opinion and politicians. 127 Nuanced and well informed reporting is to the benefit of the rights of the child...
5. Childs right and parents primary responsibility for the upbringing and development of the child Many states have issued declarations or reservations regarding the relationship between parents and children and make specific reference to Article 16. Most of these are based around an idea that children are not full holders of rights. The Philippines is not one of these countries but the Committee has noted amongst various countries that
Human Rights Committee, General Comment No. 16, 1988, HRI/GEN/1/Rev.8, para. 8, p. 182 Human Rights Committee, General Comment No. 16, 1988, HRI/GEN/1/Rev.8, para. 11, p. 183 127 Committee on the Rights of the Child, Report on the eleventh session, January 1996, CRC/C/50, Annex IX, pp. 80 and 81
126
125
additional measures, including for example secondary legislation controlling particular settings, are needed to guarantee the right to privacy in practice.128 6. The childs right to privacy when his or her liberty is restricted As mentioned above, the Committee has endorsed the United Nations Rules for the Protection of Juveniles Deprived of their Liberty as those that should be applied whenever a child is in an institution. Those relating to privacy are as follows:
Rule13. - Juveniles deprived of their liberty shall not for any reason related to their status be denied the civil, economic, political, social or cultural rights to which they are entitled under national or international law, and which are compatible with the deprivation of liberty. [In addition, there are specific provisions relating to files, design and physical environment, personal effects, visits, correspondence and the conduct of personnel. Rule 32 - The design of detention facilities for juveniles and the physical environment should be in keeping with the rehabilitative aim of residential treatment, with due regard to the need of the juvenile for privacy, sensory stimuli, opportunities for association with peers and participation in sports, physical exercise and leisure-time activities. The design and structure of juvenile detention facilities should be such as to minimize the risk of fire and to ensure safe evacuation from the premises. There should be an effective alarm system in case of fire, as well as formal and drilled procedures to ensure the safety of the juveniles. Detention facilities should not be located in areas where there are known health or other hazards or risks. Rule 34 -Sanitary installations should be so located and of a sufficient standard to enable every juvenile to comply, as required, with their physical needs in privacy and in a clean and decent manner. Rule 35 - The possession of personal effects is a basic element of the right to privacy essential to the psychological well-being of the juvenile. The right of every juvenile to possess personal effects and to have adequate storage facilities for them should be fully recognized and respected. Personal effects that the juvenile does not choose to retain or that are confiscated should be placed in safe custody. An inventory thereof should be signed by the juvenile. Steps should be taken to keep them in good condition. All such articles and money should be returned to the juvenile on release, except in so far as he or she has been authorized to spend money or send such property out of the facility. If a juvenile receives or is found in possession of any medicine, the medical officer should decide what use should be made of it. Rule 60 - Every juvenile should have the right to receive regular and frequent visits, in principle once a week and not less than once a month, in circumstances that respect the need of the juvenile for privacy, contact and unrestricted communication with the family and the defence counsel. Rule 87 - In the performance of their duties, personnel of detention facilities should respect and protect the human dignity and fundamental human rights of all juveniles, in particular, as follows: (e) All personnel should respect the right of the juvenile to privacy, and, in particular, should safeguard all confidential matters concerning juveniles or their families 129 learned as a result of their professional capacity
128
Implementation Handbook for the Convention on the Rights of the Child, page 204.
7. Privacy in juvenile justice, child protection and other proceedings (a) Children in conflict with the law Article 40 of the Convention works in tandem with Article 16 by requiring that if a child is in conflict with the law, then he or she is entitled, to have his or her privacy fully respected at all stages of the proceedings. The Committee elaborates:
The right of the child to have his/her privacy fully respected in all stages of the proceedings reflects the right to protection of privacy enshrined in article 16. All stages of the proceedings includes from the initial contact with law enf orcement (e.g., a request for information and identification) up until the final decision by a competent authority or release from supervision, custody or deprivation of liberty. It is in this particular context meant to avoid harm caused by undue publicity or by the process of labeling. No information shall be published that may lead to the identification of a child offender because of its effect of stigmatization, and possible impact on their ability to obtain an education, work, housing or to be safe. It means that a public authority should be very reluctant with press releases related to offences allegedly committed by children and limit them to very exceptional cases. They must take measures to guarantee that children are not identifiable via these press releases. Journalists who violate the right to privacy of a child in conflict with the law should be sanctioned with disciplinary and when necessary 130 (e.g., in case of recidivism) with penal law sanctions.
According to the Committee, there should only be a public hearing of a child in conflict with the law if it is a well-defined case, there is a written decision from the court and the child can appeal this decision. The recommended rule is that procedures involving juvenile justice should be private and any exception should be limited and well defined. When the verdict and sentence are announced it should be done in a way that protects the privacy of the child:
The right to privacy (art. 16) requires all professionals involved in the implementation of the measures taken by the court or another competent authority to keep all information that may result in identification of the child confidential in all their external contacts. Furthermore, the right to privacy also means that the records of child offenders shall be kept strictly confidential and closed to third parties except for those directly involved in the investigation, adjudication and disposition of the case. With a view to avoiding stigmatization and/or prejudgements, records of child offenders shall not be used in adult proceedings in subsequent cases involving the same offender (see the Beijing Rules, rules 21.1 and 21.2), or to enhance such future sentencing. The Committee recommends States Parties to introduce rules which would allow for an automatic removal from the criminal records the name of the child who committed an offence upon reaching the age of 18, or for certain limited, serious offences where removal is possible at the request of the child, if necessary under certain conditions (e.g. 131 not having committed an offence within two years after the last conviction).
United Nations Rules for the Protection of Juveniles Deprived of their Liberty Committee on the Rights of the Child, General Comment No. 10, 2007, CRC/C/GC/10, para. 23l 131 Committee on the Rights of the Child, General Comment No. 10, 2007, CRC/C/GC/10, para. 23 l. See also article 40, page 601.
130
129
The United Nations Standard Minimum Rules for the Administration of Juvenile Justice or Beijing Rules adds to the requirements of Article 40:
Protection of privacy Rule - 8.1 The juvenile's right to privacy shall be respected at all stages in order to avoid harm being caused to her or him by undue publicity or by the process of labeling. Rule - 8.2 In principle, no information that may lead to the identification of a 132 juvenile offender shall be published. Commentary Rule 8 stresses the importance of the protection of the juvenile's right to privacy. Young persons are particularly susceptible to stigmatization. Criminological research into labeling processes has provided evidence of the detrimental effects (of different kinds) resulting from the permanent identification of young persons as "delinquent" or "criminal". Rule 8 stresses the importance of protecting the juvenile from the adverse effects that may result from the publication in the mass media of information about the case (for example the names of young offenders, alleged or convicted). The interest of the individual should be protected and upheld, at least in principle.
The ICCPR also contains a provision about protecting the privacy of individuals in conflict with the law. Article 14 states that, any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.133 In the Philippines, a youthful offender who has been charged and the charges have been ordered dropped, or who has been charged and the court acquits him, or dismisses the case or commits him to any institution and subsequently releases him, all the records of the case shall be considered as privileged and may not be disclosed directly or indirectly to anyone for any purpose whatsoever, except in certain circumstances.134 The Juvenile Justice and Welfare Act of 2006 contains a number of provisions concerning a childs right to privacy. Section five of the Act is concerned with the rights of children who find themselves in conflict with the law. There are two separate provisions of this section concerning a childs right to privacy. The first is that the child has a right to te stify on his or her own behalf under the rule on examination of a child witness. This reinforces the privacy rights of children testifying in a criminal trial. The second is much broader and is
132 133
United Nations Standard Minimum Rules for the Administration of Juvenile Justice or Beijing Rules Article 14(1) International Convention on Civil and Political Rights 134 Section 31 (g), AM. No. 004-07-SC, Rule on Examination of a Child Witness (2000).
a general right that all children in conflict with the law must have their privacy respected at all stages of the proceedings.135 The Act also mentions the role of the mass media in the prevention of juvenile delinquency. Section 14 is a balance between the rights of the media and the rights of the child. The result is that when the media reports on cases involving children in conflict with the law, they must exercise the highest critical and professional standards. The media is expected to put the best interests of the child first and any sensationalized publicity is deemed to be an infringement of the childs rights.136 Once a child is taken into custody the law enforcement officer has certain duties that he or she must undertake. One of these duties is to immediately take the child to a medical/health officer to undergo a physical and mental examination (Section 21(j)). These examination results and any medical treatment required is to be kept confidential unless otherwise ordered by the Family Court.137 Section 43 is one of the most important sections of the Act concerning privacy as it details the confidentiality of records and proceedings. It establishes that all records and proceedings involving children in conflict with the law, from initial contact until final disposition of the case, are to be considered privileged and confidential and that the public is not to be admitted to any of the proceedings. Furthermore, the only reason for disclosing the proceedings or records is to determine if the child in question is eligible for a suspended sentence, for probation under the Probation Law or to enforce civil liability imposed in the criminal action.138 The above section goes further to establish the responsibility of those with access to the records of children. This includes non-disclosure of records to the media and the maintenance of a separate police blotter for cases involving children in conflict with the law. It also includes the adoption of measures such as a coding system to make sure that records cannot lead someone to a childs identity. This means t hat records involving a child will not be used in subsequent proceedings when that child becomes an adult unless they are beneficial and there is written consent from the individual. This further means that if a person is in conflict with the law as an adult after they have been in conflict with the law as a child, they will not be subject to perjury or similar charges for failing to acknowledge a case they were involved in as a child.139 The Act contains a section on prohibited acts and one of these prohibited acts is labeling and shaming. This means that authorities must refrain from branding or referring to a child as a criminal, delinquent, prostitute or any other derogatory label that could offend the honor or reputation of the child.140 Furthermore, children will be
135 136
Section 5, Republic Act No. 9344, Juvenile Justice and Welfare Act (2002). Section 14, Republic Act No. 9344, Juvenile Justice and Welfare Act (2002). 137 Section 21, Republic Act No. 9344, Juvenile Justice and Welfare Act (2002). 138 Section 43, Republic Act No. 9344, Juvenile Justice and Welfare Act (2002). 139 Section 43, Republic Act No. 9344, Juvenile Justice and Welfare Act (2002). 140 Section 60, Republic Act No. 9344, Juvenile Justice and Welfare Act (2002)
exempt from punishments designed to embarrass the child such as forcing the child to walk around the community wearing a sign that details their offence or criminal status.141 (b) Children who are victims of child abuse The Committee on the Rights of the Child makes an important point in the following passage where they extend protection not only to children in conflict with the law but also to children who are involved in a case of child abuse or family problems:
It is important that the media themselves do not abuse children. The integrity of the child should be protected in reporting about, for instance, involvement in criminal activities, sexual abuse and family problems. Fortunately, the media in some countries have voluntarily agreed to respect guidelines which offer such protection of the privacy of 142 the child; however, such ethical standards are not always adhered to.
When there is a case involving child abuse, the Committee recommends that reporting on the issue needs to be tempered with the dignity of the child involved; protecting the identity of the child must weigh more heavily in this type of reporting. 143 Child abuse in the Philippines is covered under Republic Act 7610, known as the Child Protection Act, includes in its remedial procedures several provisions protecting the privacy of children who are victims of abuse and exploitation. Under the Act, at the instance of the offended child, his/her name may be withheld from the public, until the court acquires jurisdiction over the case. In addition, it shall be unlawful for any editor or publisher, and reporter or columnist in case of printed materials, announcer or producer in the case of television and radio broadcasting, producer and director of the film in case of the movie industry, to cause undue and sensationalized publicity of any case of violation of the said Act which results in the moral degradation and suffering of the offended party.144 The law further tasks the prosecutor to limit the publication of information, photographs, or artistic renderings that may identify the victim of child abuse. Moreover, to assure the privacy of the child victim, cases involving violations of R.A. 7610 or the Child Protection Act shall be heard in the chambers of the judge of the Regional Trial Court duly designated as Juvenile and Domestic Relations Court. 145 When a medical establishment learns about a case of child abuse, child exploitation or child labor contrary to labor laws they are required, within 48 hours, to report the case in writing to the city or provincial fiscal or to the Local Council for the Protection of Children or to the nearest unit of the Department of Social Welfare. If this
141 142
Section 61, Republic Act No. 9344, Juvenile Justice and Welfare Act (2002) Committee on the Rights of the Child, Report on the eleventh session, January 1996, CRC/C/50, Annex
IX, p. 80 Committee on the Rights of the Child, Report on the thirteenth session, September/October 1996, CRC/C/57, para. 256 144 Article XI, Section 29, Republic Act 7610 (1992). 145 Article XI, Section 30, Republic Act 7610 (1992).
143
is a case of sexual abuse then the records are kept confidential and only disclosed to a court or official proceeding.146 Section 44 of the Anti-Violence Against Women and Their Children Act of 2004 (Republic Act No. 9262) establishes that all records pertaining to cases of violence against women and their children including those in the barangay shall be confidential and all public officers and employees and public or private clinics to hospitals shall respect the right to privacy of the victim. Whoever publishes or causes to be published, in any format, the name, address, telephone number, school, business address, employer, or other identifying information of a victim or an immediate family member, without the latter's consent, shall be liable to the contempt power of the court. Any person who violates this provision shall suffer the penalty of one (1) year imprisonment and a fine of not more than Five Hundred Thousand pesos (P500,000.00). There was concern that this did not go far enough as information about the victim could still be contained in the reports of the Supreme Court. This was resolved in the following case where it was decided that reports would not contain the names of victims nor would they offer any information that might help to establish the victims identity.
ILLUSTRATIVE CASE
PEOPLE OF THE PHILIPPINES vs. CABALQUINTO, MELCHOR G.R. No. 167693, September 19, 2006; 502 SCRA 419 This case presents an opportunity for the Court not only to once again dispense due requital for the sufferings of a child who has been defiled by her own father, but also to effectuate the provisions of Republic Act No. 7610 (RA 7610), otherwise known as the Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act, and its implementing rules, RA 9262, otherwise known as the Anti-Violence Against Women and Their Children Act of 2004, and its implementing rules, and our own Rule on Violence Against Women and their Children. The provisions on confidentiality of these enactments uniformly seek to respect the dignity and protect the privacy of women and their children. Sec. 29 of RA 7610 provides: Sec. 29. Confidentiality. - at the instance of the offended party, his name may be withheld from the public until the court acquires jurisdiction over the case. It shall be unlawful for any editor, publisher, and reporter or columnist in case of printed materials, announcer or producer in the case of television and radio broadcasting, producer and director in the case of the movie industry, to cause undue and sensationalized publicity of any case of a violation of this Act which results in the moral degradation and suffering of the offended party. Sec. 44 of RA 9262 similarly provides:
146
Article 166, Presidential Decree No. 603, The Child and Youth Welfare Code, 1974
Sec. 44. Confidentiality.- All records pertaining to cases of violence against women and their children including those in the barangay shall be confidential and all public officers and employees and public or private clinics or hospitals shall respect the right to privacy of the victim. Whoever publishes or causes to be published, in any format, the name, address, telephone number, school, business address, employer, or other identifying information of a victim or an immediate family member, without the latter's consent, shall be liable to the contempt power of the court. Any person who violates this provision shall suffer the penalty of one (1) year imprisonment and a fine of not more than Five Hundred Thousand Pesos (P500,000.00). Likewise, the Rule on Violence Against Women and their Children states: Sec. 40. Privacy and confidentiality of proceedings. - All hearings of cases of violence against women and their children shall be conducted in a manner consistent with the dignity of women and their children and respect for their privacy. Records of the cases shall be treated with utmost confidentiality. Whoever publishes or causes to be published, in any format, the name, address, telephone number, school, business address, employer or other identifying information of the parties or an immediate family or household member, without their consent or without authority of the court, shall be liable for contempt of court and shall suffer the penalty of one year imprisonment and a fine of not more than Five Hundred Thousand (P500,000.00) Pesos. It is worth mentioning in this connection that the Court has resolved to refrain from posting in its Internet Web Page the full text of decisions in cases involving child sexual abuse in response to a letter from a mother of a child abuse victim addressed to the Chief Justice expressing anxiety over the posting of full text decisions of the Supreme Court on its Internet Web Page. The mother submitted that confidentiality and the best interest of the child must prevail over public access to information and pleaded that her daughter's case, as well as those of a similar nature, be excluded from the Web Page. The Court required the Office of the Solicitor General (OSG), the Integrated Bar of the Philippines (IBP), National Press Club (NPC), Philippine Press Institute (PPI), Kapisanan ng mga Brodkaster sa Pilipinas (KBP) and the Department of Social Welfare and Development (DSWD) to comment on whether or not it is proper to post the full text of decisions of similar cases on the Supreme Court Web Page. The position of the OSG in its Comment is noteworthy. The OSG submits that the posting of the full text of decisions in cases involving child abuse on the Supreme Court Web Page violates the right to privacy of the aggrieved parties. In order to determine whether the subject matter upon which the right to privacy being invoked falls within the constitutionally-protected zone of privacy, it must be shown that the person's expectation of privacy is reasonable. The reasonableness of such expectancy depends on a two-part test: (1) whether by his conduct, the individual has exhibited an expectation of privacy; and (2) whether this expectation is one that society recognizes as reasonable.
According to the OSG, the fact that the aggrieved child may have consented, through a parent or guardian, to a public hearing of the case does not negate the expectation of privacy which the child may later invoke because child victims cannot be presumed to have intended their initial agreement to extend beyond the termination of their case to the posting of the decision reached by the Court on the Web Page. Moreover, such an expectation of privacy is reasonable considering the various statutes and rules which reveal the intention of the State to maintain the confidentiality of information pertaining to child abuse cases. The OSG invites the Court's attention to a New Jersey statute which provides that all court documents which state the name, address and identity of a child victim in certain sexual assault, endangering the welfare and abuse and neglect cases should remain confidential. The name of the victim shall not appear in any public record; rather, initials or a fictitious name shall appear. The offenses covered by the law include aggravated sexual assault, sexual assault, aggravated criminal sexual contact, criminal sexual contact, endangering the welfare of children, and any action alleging an abused or neglected child. Thus, in Application of V Pub. Corp., 120 N.J. 508 (1990), and Div. of Youth & Fam. Serv. V. J.B., 120 N.J. 112 (1990), the New Jersey Supreme Court provided guidelines in the implementation of this statute. In conclusion, the OSG suggests the adoption of a system of coding which could include the use of pseudonyms in cases of a similar nature. Short of withdrawing the full text of decisions in such cases from the Web Page, the OSG proposes that the Court instead replace the material information, such as the name of the child-victim, in its decisions. The DSWD imparted the same sentiment. It submits that the court records of child abuse cases should be treated with strict confidentiality not only throughout the court proceedings, but even after the promulgation of the decision in order to protect the right to privacy of the child and her family and to preclude instances where undue disclosure of information may impair the treatment and rehabilitation of the child-victim. The Court likewise appreciates the separate comments of the KBP and NPC. The KBP informs the Court that its members have agreed not to identify in their broadcasts the names of children who are victims of abuse or are in conflict with the law. The NPC, on the other hand, tells us that the prevailing media practice is to inquire whether these individuals wish to have their names appear in the report. If they do not, media would normally take off the names and merely provide a very general description of the individual in recognition of the need to carefully balance the right to information with the welfare of the parties involved. Taking all these opinions into account and in view of recent enactments which unequivocally express the intention to maintain the confidentiality of information in cases involving violence against women and their children, in this case and henceforth, the Court shall withhold the real name of the victim-survivor and shall use fictitious initials instead to represent her. Likewise, the personal circumstances of the victims-survivors or any other information tending to establish or compromise their identities, as well those of their immediate family or household members, shall not be disclosed. (Emphasis added) xxx
EN BANC
A.M. No. 99-7-06-SC RE: IN RE INTERNET WEB PAGE OF THE SUPREME COURT Sirs/Mesdames: Quoted hereunder, for your information, is a resolution of this Court dated FEB 14 2006. A.M. No. 99-7-06-SC (In Re Internet Web Page of the Supreme Court).- The Court received a letter from a concerned mother addressed to the Chief Justice expressing anxiety over the posting of full text decisions of the Supreme Court on its Internet Web Page. Her daughter was a victim of child abuse in a criminal case previously decided by the Court and the decision contains a graphic description of the offensive acts committed against her. The daughter, according to the mother, after going through so much pain and helped by the nurturing of their family and a clinical psychologist, has moved forward doing graduate work in a university abroad. She claims that she is now experiencing the same torment she went through during the emotionally draining court trial after she accidentally found the decision on the Internet Web Page. Submitting that confidentiality and the best interest of the child must prevail over public access to information, she pleads that her daughter's case as well as those of similar nature be excluded from the Web Page. Considering the foregoing, the Court resolves to REQUIRE the Office of the Solicitor General (OSG), Integrated Bar of the Philippines (IBP), National Press Club (NPC), Philippine Press Institute (PPI), Kapisanan ng mga Broadkaster saPilipinas (KBP) and the Department of Social Welfare and Development (DSWD) to COMMENT on whether or not it is proper to post the full text decisions of cases of the same nature as the above adverted case on the Supreme Court Internet Web Page within ten (10) days from receipt hereof. The Court further resolves in the meantime to REFRAIN from posting on its Web Page the full text of decisions in cases of similar nature. Very truly yours, (SGD.) MA. LUISA D. VILLARAMA Clerk of Court
(c) Children as witnesses When it comes to the issue of privacy of a child witness, the Supreme Court has detailed how this issue is to be handled in the Rule on Examination of Child Witness. As stated therein, when it is found that competency examination of a child witness is necessary, such examination shall be conducted solely by the judge. Counsel of the parties can only submit questions to the judge that he may, in his discretion, ask the child.147 During this child witness examination, only the judge and necessary court personnel, counsel for the parties, guardian ad litem, one or more support persons for the child, and the defendant, unless the court determines that competence can be fully evaluated in his absence, are allowed to attend.148 To further protect the privacy of the child, such specific Rule also grants a child the right at any court proceeding not to testify regarding personal identifying information, including his name, address, telephone number, school, and other information that
147 148
Section 6 (d), AM. No. 004-07-SC, Rule on Examination of a Child Witness (2000). Section 6 (c), AM. No. 004-07-SC, Rule on Examination of a Child Witness (2000).
could endanger his physical safety or his family. The court may, however, require the child to testify regarding personal identifying information in the interest of justice.149 Only a child who has given his consent may be required to testify at the hearing in chambers.150 Should the child decide to testify in open court, the courts are encouraged to provide a waiting area for children, separate from waiting areas used by other persons.151 The support persons of the child must be instructed not to prompt, sway, or influence the child during his testimony.152 During the testimony, the court may order the exclusion from the courtroom of all persons, including members of the press, who do not have a direct interest in the case. Such an order may be made to protect the right to privacy of the child or for other justifiable reasons found by the court.153 Conversely, if the court finds that the child will not be able to testify in open court at trial, it shall allow the taking of the deposition of the child by videotape.154 His testimony may also be taken in a room outside the courtroom and be televised to the courtroom by live-link television.155 Furthermore, any record regarding a child shall be confidential and kept under seal except upon written request and order of the court.156 Similarly, the motion and the record of the hearing involving a child witness must be sealed and remain under seal and protected by a protective order.157 Any videotape or audiotape of a child that is part of the court record shall be under a protective order that provides that, tapes may be viewed only by parties, their counsel, their expert witness, and the guardian ad litem; no tape, or any portion thereof, shall be divulged except by authorized individuals to any other person; no person shall be granted access to the tape, its transcription or any part thereof unless he signs a written affirmation; no tape shall be given, loaned, sold, or shown to any person except as ordered by the court; and each of the tape cassettes and transcripts thereof made available to the parties, their counsel, and respective agents shall bear a cautionary notice stating that the object or document and the contents thereof shall not be examined, inspected, read, viewed, or copied by any person, or disclosed to any person, except as provided in the protective order, that no additional copies of the tape or any portion shall be made, given sold, or shown to any person without prior court order.158 This videotape or audiotape of a child made part of the court records shall be destroyed after five (5) years have elapsed from the date of entry of judgment.159
149 150
Section 31 (e), AM. No. 004-07-SC, Rule on Examination of a Child Witness (2000). Section 30, AM. No. 004-07-SC, Rule on Examination of a Child Witness (2000). 151 Section 12, AM. No. 004-07-SC, Rule on Examination of a Child Witness (2000). 152 Section 11 (a)(4), AM. No. 004-07-SC, Rule on Examination of a Child Witness (2000). 153 Section 23, AM. No. 004-07-SC, Rule on Examination of a Child Witness (2000). 154 Section 27 (b), AM. No. 004-07-SC, Rule on Examination of a Child Witness (2000). 155 Section 25 (a), AM. No. 004-07-SC, Rule on Examination of a Child Witness (2000). 156 Section 31 (a), AM. No. 004-07-SC, Rule on Examination of a Child Witness (2000). 157 Section 30, AM. No. 004-07-SC, Rule on Examination of a Child Witness (2000). 158 Section 31 (b), AM. No. 004-07-SC, Rule on Examination of a Child Witness (2000). 159 Section31 (f), AM. No. 004-07-SC, Rule on Examination of a Child Witness (2000).
With the same objective of protecting the privacy of child, the court may, motu proprio or on motion of any party, the child, his parents, legal guardian, or the guardian ad litem, issue additional orders.160 The court may exercise its contempt power over an immediate family of the child or whoever publishes or causes to be published in any format the name, address, telephone number, school or other identifying information of a child who is or is alleged to be a victim or accused of a crime or a witness thereof.161
ILLUSTRATIVE CASE
GENIL, JESUSA ODONEL vs. RIVERA, ROGACIANO Y. A.M. No. MTJ-06-1619, January 23, 2006; 479 SCRA 363 Judge Rogaciano Y. Rivera (respondent) of the Municipal Trial Court (MTC) of Sta. Catalina, Negros Oriental is the subject of two letter-complaints filed on September 11, 2003 before the Office of the Chief Justice by Jesusa Odonel Genil (complainant), barangay captain of Amio, Sta. Catalina, Negros Oriental. The events which spawned the filing of the complaint against respondent are related by complainant as follows: On May 30, 2003, one of complainants constituents, Nancy Silfaban (Nancy), filed before the MTC of Sta. Catalina, Negros Oriental two criminal complaints against Roderick Sales, one for rape and the other for forcible abduction with rape, docketed as Criminal Case Nos. 3791 and 3792, respectively. On even date, Nancy also filed a criminal complaint against Janice Sales for violation of Republic Act 7610, otherwise known as the Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act, docketed as Criminal Case No. 3793. Respondent conducted a preliminary investigation of Criminal Case Nos. 3791 and 3792 two and a half months later or on August 13, 2003 after the accused was ordered to submit his counter-affidavit, which preliminary investigation was made in open court. During the above-said preliminary investigation, Nancy, a minor, was called to the witness stand and, in the course of her testimony subjected to humiliation as all those present, including respondent, the counsel for the defense Atty. Arturo Erames, and SPO4 Herminigildo Ortiz Cadungog (SPO4 Cadungog) of the Philippine National Police (PNP) who acted as prosecutor, were laughing. Respecting Criminal Case No. 3793 against Janice Sales, respondent had yet to act on it. Apprehensive that respondent would dismiss the cases which Nancy filed, complainant requested this Court for a change of venue. The letter-complaints were eventually referred for investigation to Judge Orlando C. Velasco of Branch 63 of the Regional Trial Court of Bayawan City who directed
160 161
Section 31 (c), AM. No. 004-07-SC, Rule on Examination of a Child Witness (2000). Section 31 (d), AM. No. 004-07-SC, Rule on Examination of a Child Witness (2000).
respondent to file his Comment thereon and to require the public prosecutor and the counsel of Roderick Sales to also submit their respective comments. Complying with Judge Velascos directive, respondent, by Comment dated October 9, 2003, explained that preliminary investigation on the complaints filed by Nancy were not immediately conducted as the evidence was "weak" and "unbelievable," it being "manifestly inconsistent with, and repugnant to, the natural course of things." Respecting the conduct of preliminary investigation in open court on August 13, 2003, respondent claimed that not only did Nancy not request otherwise; she, albeit a minor, "looks energetic, psychologically mature and somewhat aggressive who answers questions quickly," and there was nothing in her affidavit or testimony which warranted the exclusion of the public from the proceedings. And respondent disclaimed the occurrence of any laughing incident during the preliminary investigation, he adding that "all were eager to observe the proceedings." On complainants request for change of venue, respondent suggested that the cases be forwarded to the Office of the Provincial Prosecutor of Negros Oriental, Dumaguete City, and unless otherwise directed, he would proceed to resolve the cases. In his Comment, SPO4 Cadungog claimed that he is not learned in the law which could explain complainants dissatisfaction with his performance when he acted as prosecutor during the preliminary investigation of the complaints which Nancy filed. And he too denied that there was laughing during the preliminary investigation. Defense counsel Atty. Erames, by his Comment, also disclaimed that there was laughing during the preliminary investigation. He advanced though that the relatives of the accused in the first two criminal cases "may have been pleased" with Nancy s testimonies which tended to support the defense claim that the accused and Nancy were sweethearts. On complainants request for transfer of venue of the criminal cases, he interposed no objection. In his Investigation Report dated October 16, 2003, Judge Velasco noted that Nancy was subjected to "unhampered ridicule, embarrassment and humiliation" during the preliminary investigation, and respondent even "ordered her to turn clockwise to the delight of every one present." Regarding the status of Criminal Case Nos. 3791 and 3792, Judge Velasco reported that they had remained unresolved by respondent, while Criminal Case No. 3793 had yet to be acted upon. By letter dated August 13, 2004, respondent, in compliance with two telegrams dated January 23, 2004 and July 19, 2004 of the Office of the Court Administrator (OCA) directing him to report the status of the cases, informed that they had been resolved and were ready for transmittal to the Office of the Provincial Prosecutor of Negros Oriental, Dumaguete City for further disposition. By Report of February 14, 2005, the OCA recommends that the administrative case against respondent be docketed as a regular administrative matter and that he be fined in the amount of P21,000 for gross ignorance of the law, with warning that a repetition of the same or similar act would be dealt with more severely, in light of the following observations:
xxx [Respondent] took no action on Criminal Case No. 3793 from the date of its filing on 30 May 2003 until 09 October 2003 and offered no explanation for its delay before him. He conducted the preliminary investigation in Criminal Case Nos. 3791 and 3792 only on 13 August 2003, but he has not yet submitted his resolutions thereon to the Provincial Prosecutor. Assuming he had already resolved the cases on 13 August 2004, still there was undue delay. xxx Respondent judge displayed blatant insensitivity to the child victim. He allowed the defense counsel to cross-examine the child witness and her mother which caused them extreme humiliation and embarrassment. xxx Parties cannot be subjected to direct examination or cross-examination. Questions or issues that may arise during the investigation should be addressed to the investigating judge who should propound the same to the party concerned. Noteworthy is that the Rule on Examination of a Child Witness (A.M. No. 004-07-SC 21 November 2000) does not permit a defense counsel to even approach a child who is testifying if it appears that the child is fearful of or intimidated by the counsel. xxxNeither does the Rule require a manifestation from the child or her mother to exclude the public from the hearing. The court may motu proprio exclude the public from the courtroom to protect the right to privacy of the child; if requiring the child to testify in open court would cause psychological harm to him; if it would hinder the ascertainment of truth or result in his inability to effectively communicate due to embarrassment, fear or timidity; and if the evidence to be produced is of such character as to be offensive to decency or public morals. (Emphasis and underscoring supplied) By Resolution of March 16, 2005, this Court noted the February 14, 2005 OCA Report and required the parties to manifest within 20 days whether they were submitting the case on the basis of the pleadings/records already filed and submitted. Respondent has manifested, by Compliance submitted on June 3, 2005, that he is submitting the case for resolution. Appended to the Compliance was the December 28, 2004 Resolution of Assistant Prosecutor Gloria Cynthia P. Icao of the Provincial Prosecution Office of Negros Oriental, bearing the approval of the Provincial Prosecutor in I.S. Case No. 2004-544 which affirmed and adopted the Resolution of the MTC of Sta. Catalina, Negros Oriental dismissing Criminal Case No. 3793 ( People v. Janice Sales) for lack of merit. This Court noted respondents Compliance by Resolution of July 6, 2005, as it did note complainants failure to comply with the March 16, 2005 Resolution, by Resolution of August 10, 2005. Section 3(b), Rule 112 of the Rules on Criminal Procedure provides that within ten (10) days after the filing of a criminal complaint, the investigating officer shall either dismiss it if he finds no ground to continue with the investigation, or issue a subpoena to the respondent to which a copy of the complaint and supporting affidavits and documents should be attached. Section 3(e) and (f) of the same Rule provide: (e) The investigating officer may set a hearing if there are facts and issues to be clarified from a party or a witness. The parties can be present at the hearing but without the right to examine or crossexamine. They may, however, submit to the investigating officer questions which may be asked to the party or witness concerned.
The hearing shall be held within ten (10) days from submission of the counter-affidavits and other documents or from the expiration of the period for their submission. It shall be terminated within five (5) days. (f) Within ten (10) days after the investigation, the investigating officer shall determine whether or not there is sufficient ground to hold the respondent for trial. (Emphasis and underscoring Supplied) Moreover, Section 5 of still the same Rule provides: SEC. 5. Resolution of investigating judge and its review. - Within ten (10) days after the preliminary investigation , the investigating judge shall transmit the resolution of the case to the provincial or city prosecutor, or to the Ombudsman or his deputy in cases of offenses cognizable by the Sandiganbayan in the exercise of its original jurisdiction, for appropriate action. The resolution shall state the findings of facts and the law supporting his action, together with the record of the case which shall include: (a) the warrant, if the arrest is by virtue of a warrant; (b) the affidavits, counter-affidavits and other supporting evidence of the parties; (c) the undertaking or bail of the accused and the order for his release; (d) the transcripts of the proceedings during the preliminary investigation; and (e) the order of cancellation of his bail bond, if the resolution is for the dismissal of the complaint. xxx (Emphasis and underscoring supplied) On top of the above-quoted provision of Sec. 3(e) of Rule 112 that the parties in a preliminary investigation have no right to examine or cross-examine, the Rule on Examination of a Child Witness provides that the court shall exercise control over the questioning of children so as to facilitate the ascertainment of the truth and ensure that questions are stated in a form appropriate to their developmental level and protect them from harassment or undue embarrassment. The same Rule on Examination of a Child Witness provides that when a child testifies, the court may, motu proprio, order the exclusion from the courtroom of all persons who do not have a direct interest in the case. In issuing such order, the court is to consider, inter alia, the developmental level of the child, the nature of the crime, and the nature of his testimony regarding the crime. It may also exclude the public from the courtroom if the evidence to be produced is of such character as to be offensive to decency or public morals. As reflected earlier, while the criminal complaints of Nancy were filed on May 30, 2003 before the MTC, it was only on August 13, 2003 or after two and a half months that respondent conducted the preliminary investigation for Criminal Case Nos. 3791 and 3792. And, per the Investigation Report of Judge Velasco, as of October 16, 2003 or more than four months after Criminal Case No. 3793 was filed, no action had yet been taken thereon by respondent. By respondents admission, as of August 13, 2004 or more than a year after the criminal complaints were filed and exactly a year after the preliminary investigation for Criminal Case Nos. 3791 and 3792 was conducted , his resolutions thereon had yet to be transmitted to the Office of the Provincial Prosecutor of Negros Oriental, Dumaguete City.
As the above-quoted provisions of the Rules direct, after a preliminary investigation is conducted, the investigating judge must perform his ministerial duty to transmit within ten days after the conclusion thereof the resolution of the case together with the entire records to the provincial prosecutor. If on the other hand he determines, after examining the complaint and other documents offered in support thereof, that there is no ground to continue with the inquiry, he should dismiss the complaint and transmit the order of dismissal together with the records of the case to the provincial prosecutor within ten days from the filing of the complaint. And, examination or crossexamination by the parties is proscribed. Yet respondent not only allowed SPO4 Cadungog who acted as prosecutor to cross-examine the accused Roderick Sales; he also allowed the defense counsel to propound questions to Nancy and her mother. It is a fundamental principle that the accused in a preliminary investigation has no right to cross-examine the witnesses which the complainant may present. Section 3, Rule 112 of the Rules of Court expressly provides that the respondent shall only have the right to submit a counter-affidavit, to examine all other evidence submitted by the complainant and, where the fiscal sets a hearing to propound clarificatory questions to the parties or their witnesses, to be afforded an opportunity to be present but without the right to examine or cross-examine. (Underscoring supplied) Indubitably then, respondent was remiss in the performance of his duties when he not only allowed the cross-examination of the parties during the preliminary investigation but also failed to resolve the criminal complaints within the period mandated by law. Judges owe it to the public to be knowledgeable, hence, they are expected to have more than just a modicum of acquaintance with the statutes and procedural rules. When the law is so elementary, not to know it or to act as if one does not know it constitutes gross ignorance of the law, the mainspring of injustice. And judges must be faithful to the laws and maintain professional competence. xxx Indeed, competence is a mark of a good judge. When a judge displays an utter lack of familiarity with the rules, he erodes the public s confidence in the competence of our courts. Such is gross ignorance of the law. Having accepted the exalted position of a judge, he owes the public and the court the duty to be proficient in the law. Unfamiliarity with the Rules of Court is a sign of incompetence. Basic rules must be at the palm of his hands. A judge must be acquainted with legal norms and precepts as well as with procedural rules. xxx xxx Verily, failure to follow basic legal commands embodied in the law and the Rules constitutes gross ignorance of the law, from which no one is excused, and surely not a judge. (Emphasis and underscoring supplied) For gross ignorance of the law or procedure then, which is classified as a serious charge under Rule 140 of the Rules of Court, as amended by A.M. No. 01-8-10-SC, this Court faults respondent for which, under Section 11 of the same rule, any of the following sanctions may be imposed: (1) dismissal from the service, forfeiture of all or part of the benefits as the Court may determine, and disqualification from reinstatement or appointment to any public office, including government-owned or controlled corporations; provided, however, that the forfeiture of benefits shall in no case include accrued leave credits; (2) suspension from office without salary and other benefits for more than three
(3) but not exceeding six (6) months; or (3) a fine of more than P20,000 but not exceeding P40,000. The recommendation of the OCA to impose a fine of P21,000, being well-taken, is approved. WHEREFORE, for gross ignorance of the law and procedure, respondent, Judge Rogaciano Y. Rivera of the Municipal Trial Court of Sta. Catalina, Negros Oriental, is FINED in the amount of TWENTY ONE THOUSAND (P21,000) PESOS and STERNLY WARNED that a repetition of the same or similar act will merit a more severe penalty. Let a copy of this Decision be entered in Judge Riveras personal record. SO ORDERED.
8. Child trafficking The Philippine government passed the Anti-Trafficking in Persons Act of 2003 (Republic Act No. 9208) to combat the trafficking of persons in the Philippines. This Act recognized that the effects of child trafficking do not end when a child is rescued since a negative social stigma is attached to a person when they have been a victim of child trafficking. For that reason the Act included the following section on confidentiality:
SEC. 7. Confidentiality. At any stage of the investigation, prosecution and trial of an offense under this Act, law enforcement officers, prosecutors, judges, court personnel and medical practitioners, as well as parties to the case, shall recognize the right to privacy of the trafficked person and the accused. Towards this end, law enforcement officers, prosecutors and judges to whom the complaint has been referred may, whenever necessary to ensure a fair and impartial proceeding, and after considering all circumstances for the best interest of the parties, order a closed-door investigation, prosecution or trial. The name and personal circumstances of the trafficked person or of the accused, or any other information tending to establish their identities and such circumstances or information shall not be disclosed to the public. In cases when prosecution or trial is conducted behind closed-doors, it shall be unlawful for any editor, publisher, and reporter or columnist in case of printed materials, announcer or producer in case of television and radio, producer and director of a film in case of the movie industry, or any person utilizing tri-media facilities or information technology to cause publicity of any case of trafficking in persons.
Childs access to appropriate information

Article 17
States Parties recognize the important function performed by the mass media and shall ensure that the child has access to information and material from a diversity of national and international sources, especially those aimed at the promotion of his or her social, spiritual and moral well-being and physical and mental health. To this end, States Parties shall: (a) encourage the mass media to disseminate information and material of social and cultural benefit to the child and in accordance with the spirit of Article 29; (b) encourage international co-operation in the production, exchange, and dissemination of such information and material from a diversity of cultural, national and international sources; (c) encourage the production and dissemination of children's books; (d) encourage the mass media to have particular regard to the linguistic needs of the child who belongs to a minority group or who is indigenous; (e) encourage the development of appropriate guidelines for the protection of the child from information and material injurious to his or her well - being, bearing in mind the provisions of Articles 13 and 1.
Article 17 is particularly focused on the role of the mass media in relation to childrens rights but includes a general obligation on States Parties to ensure that the child has access to information and material from diverse sources especially those aimed at promoting wellbeing and physical and mental health. This is closely linked to the childs right to freedom of expression (article 13), and to maximum development (article 6). The media must be encouraged to disseminate positive material of benefit to the child and in line with the detailed aims for education set out in article 29. The media should also be accessible to the child, promoting and respecting the participatory rights to respect for the views of children (article 12). The Committee on the Rights of the Child has noted the key role that the media can play in making the principles and provisions of the Convention on the Rights of the Child widely known to children and adults, in fulfillment of the Conventions article 42. The media can also be crucial in exposing and reporting on breaches of the rights of the child. During the drafting of the Convention, article 17 started out as a measure simply to protect the child against any harmful influence that mass media, and in particular the radio, film, television, printed materials and exhibitions, on account of their contents, may exert on his mental and moral development. But early in its discussion, one member of the Working Group suggested that the media did more good than harm and that the article should be phrased in a positive way.162 The final version of the article proposes five actions for States Parties to fulfill in order to achieve the articles overall aim; only the last concerns protecting the child from harmful material, although this is the action that tends to get most attention in the Committees examination of States reports. 1. Access to information and material from diverse sources Mass media plays an important role in disseminating information. Radio, television, magazines and newspapers are easily accessible to children and could readily influence their susceptible minds. The Convention, therefore, mandates States Parties to support the mass media in providing information and materials which have a social and cultural benefit to the child and which come from a wide variety of cultural, national and international sources. States Parties are likewise encouraged to produce informative books, programs and materials for children that will enhance their value as persons and develop in them respect for the rights of others. While the convention is formally aimed at states there is also an informal message to the media: they have an essential function in protecting and promoting human rights in general and this applies equally to the rights of the child. The Committee sees a role for the media to not only promote human rights but also act as a monitoring body to insure their enforcement. Moreover, the media is very influential on the way people view the world; it is therefore essential that the media engage in nuanced, well-informed reporting to benefit the rights of the child and avoid prejudices and stereotypes. The media is also expected to refrain from abusing children themselves by selectively reporting on cases of child abuse,
162
E/CN.4/L.1575, pp. 19 and 20, Detrick, p. 279.
family problems and children.163 This is covered in Philippine law in the Anti-Violence Against Women and Their Children Act of 2004 which will be discussed in greater detail later in the chapter. 2. Access assured to all children without discrimination The Committee on the Rights of the Child makes a number of state specific recommendations that could either be applied directly or adapted to the Philippines. In the Central African Republic, the Committee found that particular regions were not receiving enough access to the media. The solutions of the Committee were that the State provide better access to newspapers, libraries and the radio, including information in the language of these children.164 In the Marshal Islands the Committee found that children on the outer islands did not have enough access to national and international media that was aimed at promoting their wellbeing. The Committee suggested a program for more books to be dispersed in this region and for the introduction of more computers into the schools.165 The Committee was concerned that in Greece, there were a number of minorities that did not know about a number of their rights and privileges because they did not speak the dominant language nor were they part of the dominant culture. For this reason the Committee encouraged the State to create additional programs for disseminating information about these rights to people who did not speak Greek and to promote the development and accessibility of radio and television programs that reflect the diversity of the population.166 This right to access information extends to children that are in conflict with the law. Under The United Nations Rules for the Protection of Juveniles Deprived of their Liberty, Juveniles should have the opportunity to keep themselves informed regularly of the news by reading newspapers, periodicals and other publications, through access to radio and television programs and motion pictures, and through the visits of the representatives of any lawful club or organization in which the juvenile is interested.167 (a) Children who are indigenous Article 17 must be read in conjunction with the rest of the Convention. For example, Article 30 requires that the child who belongs to a religious or linguistic minority, or who is indigenous, should not be denied the right to enjoy his or her own culture, to profess and practice his or her own religion or to use his or her own language. Also, under Article 29 there is the requirement that respect be given to different values, cultures and languages that exist within a country. Therefore the
163 164
The Child and the Media, excerpted from CRC/C/50, Annex IX, 13th Session, 7 October 1996, page 1. Central African Republic CRC/C/15/Add.138, paras. 42 and 43 165 Marshall Islands CRC/C/15/Add.139, paras. 34 and 35 166 Greece CRC/C/15/Add.170, paras. 46 and 47 167 A/RES/45/113 Rule 62.
media should be encouraged to foster these value such as producing material and programmes in minority languages. The Committee has emphasized that this is especially important when the media is working to make sure that all adults and children are aware of the convention.168 (b) Disabled children The Convention on the Rights of Persons with Disabilities deals with awareness raising and the media and requires the following of State parties:
Article 8 Awareness-raising 1. States Parties undertake to adopt immediate, effective and appropriate measures: (a) To raise awareness throughout society, including at the family level, regarding persons with disabilities, and to foster respect for the rights and dignity of persons with disabilities; (b) To combat stereotypes, prejudices and harmful practices relating to persons with disabilities, including those based on sex and age, in all areas of life; (c) To promote awareness of the capabilities and contributions of persons with disabilities. 2. Measures to this end include: (c) Encouraging all organs of the media to portray persons with disabilities in a manner consistent with the purpose of the present Convention;
The Standard Rules on the Equalization of Opportunities for Persons with Disabilities are also helpful in understanding the role of the media concerning children with disabilities:
Rule 1: Awareness-raising States should take action to raise awareness in society about persons with disabilities, their rights, their needs, their potential and their contribution. States should ensure that responsible authorities distribute up-to-date information on available programmes and services to persons with disabilities, their families, professionals in the field and the general public. Information to persons with disabilities should be presented in accessible form. States should initiate and support information campaigns concerning persons with disabilities and disability policies, conveying the message that persons with disabilities are citizens with the same rights and obligations as others, thus justifying measures to remove all obstacles to full participation. States should encourage the portrayal of persons with disabilities by the mass media in a positive way; organizations of persons with disabilities should be consulted on this matter. States should ensure that public education programmes reflect in all their aspects the principle of full participation and equality. States should invite persons with disabilities and their families and organizations to participate in public education programmes concerning disability matters.
168
Implementation Handbook for the Convention on the Rights of the Child, page 224.
States should encourage enterprises in the private sector to include disability issues in all aspects of their activity. States should initiate and promote programmes aimed at raising the level of awareness of persons with disabilities concerning their rights and potential. Increased self-reliance and empowerment will assist persons with disabilities to take advantage of the opportunities available to them. Awareness-raising should be an important part of the education of children with disabilities and in rehabilitation programmes. Persons with disabilities could also assist one another in awareness-raising through the activities of their own organizations. Awareness-raising should be part of the education of all children and should be a component of teacher-training courses and training of all professionals. Rule 9: Family life and personal integrity States should promote the full participation of persons with disabilities in family life. They should promote their right to personal integrity and ensure that laws do not discriminate against persons with disabilities with respect to sexual relationships, marriage and parenthood. Persons with disabilities should be enabled to live with their families. States should encourage the inclusion in family counselling of appropriate modules regarding disability and its effects on family life. Respite-care and attendant-care services should be made available to families which include a person with disabilities. States should remove all unnecessary obstacles to persons who want to foster or adopt a child or adult with disabilities. Persons with disabilities must not be denied the opportunity to experience their sexuality, have sexual relationships and experience parenthood. Taking into account that persons with disabilities may experience difficulties in getting married and setting up a family, States should encourage the availability of appropriate counselling. Persons with disabilities must have the same access as others to family-planning methods, as well as to information in accessible form on the sexual functioning of their bodies. States should promote measures to change negative attitudes towards marriage, sexuality and parenthood of persons with disabilities, especially of girls and women with disabilities, which still prevail in society. The media should be encouraged to play an important role in removing such negative attitudes. Persons with disabilities and their families need to be fully informed about taking precautions against sexual and other forms of abuse. Persons with disabilities are particularly vulnerable to abuse in the family, community or institutions and need to be educated on how to avoid the occurrence of abuse, recognize when abuse has occurred and report on such acts.
In order for children with disabilities to have equal access to media information the State may be required to take some positive steps. Some of the steps that may be required are contained in the Convention on the Rights of Persons with Disabilities:
Article 21 - Freedom of expression and opinion, and access to information States Parties shall take all appropriate measures to ensure that persons with disabilities can exercise the right to freedom of expression and opinion, including the freedom to seek, receive and impart information and ideas on an equal basis with others and through all forms of communication of their choice, as defined in article 2 of the present Convention, including by: (a) Providing information intended for the general public to persons with disabilities in accessible formats and technologies appropriate to different kinds of disabilities in a timely manner and without additional cost;
(b) Accepting and facilitating the use of sign languages, Braille, augmentative and alternative communication, and all other accessible means, modes and formats of communication of their choice by persons with disabilities in official interactions; (c) Urging private entities that provide services to the general public, including through the Internet, to provide information and services in accessible and usable formats for persons with disabilities; (d) Encouraging the mass media, including providers of information through the Internet, to make their services accessible to persons with disabilities; (e) Recognizing and promoting the use of sign languages.
When it comes directly to the intersection of children, disabilities and the media, the Committee on the Rights of the Child makes the following statement:
Access to information and communications, including information and communications technologies and systems, enables children with disabilities to live independently and participate fully in all aspects of life. Children with disabilities and their caregivers should have access to information concerning their disabilities that educates them on the process of disability, including causes, management and prognosis. This knowledge is extremely valuable as it not only enables them to adjust to their disabilities, it also allows them to be involved and make informed decisions regarding their own care. Children with disabilities should also have the appropriate technology and other services and languages, e.g. Braille and sign language, that enables them to access all forms of media, including television, radio and printed material as well as new information and 169 communication technologies and systems, such as the Internet.
3. Childs right and parents primary responsibility for the upbringing and development of the child There is concern that material that is accessible to children, especially at an early age, might not be appropriate for them and that the State should regulate this in order to help parents limit what their children see.170 The wording of Article 17 comes up with some guidelines but suggests a voluntary scheme for the media rather than a legislative one. This scheme could include developing constructive agreements with media companies to protect children against harmful influences, comprehensive plans to empower parents in the media market, training of journalists, and specific guidelines for reporting on child abuse.171 However, the State must keep in mind, parents primary responsibility for the upbringing and development of the child, with the childs best interests as their basic concern, and the States obligation to provide appropriate assistance.172 This means that it may be counterproductive to place too many limits on the media at its source and instead allow parents to determine what their children should be watching. The State should assist parents in other ways, for example, by ensuring that they have adequate information about the content of television programmes, videos, computer games, use of the Internet and mobile technology and so on.173
169 170
Committee on the Rights of the Child, General Comment No. 9, 2006, CRC/C/GC/9, para. 37. Committee on the Rights of the Child, General Comment No. 7, 2005, CRC/C/GC/7/Rev.1, para. 35) 171 The child and the media, Committee on the Rights of the Child, Day of General Discussion, 1996: Recommendations as cited in the Implementation Handbook for the Convention on the Rights of the Child. 172 Article 18, Convention on the Rights of the Child. 173 Implementation Handbook for the Convention on the Rights of the Child, page 225.
Article 43 of the Child and Youth Welfare Code echoes the Convention by giving parents, the right to the company of their children and, in relation to all other persons or institutions dealing with the child's development, the primary right and obligation to provide for their upbringing.174 4. Encourage the mass media to disseminate information and material of social and cultural benefit to the child and in accordance with the spirit of article 29: article 17(a) When discussing education and the media, the Committee on the Right of the Child made the following important comment:
The media, broadly defined, also have a central role to play both in promoting the values and aims reflected in article 29(1) and in ensuring that their activities do not undermine the efforts of others to promote those objectives. Governments are obligated by the Convention, pursuant to article 17(a), to take all appropriate steps to encourage the mass media to disseminate information and material of social and cultural benefit to 175 the child.
Article 29(1) establishes the objectives of child education. Article 17 suggests that information and material that comes from the media should follow the same objectives. The first of these aims is to facilitate the development of the child in her or her mental and physical abilities, talents and personality to their maximum potential. The second is to help the child develop respect for the following: his or her parents; his or her cultural identity, language and values; the values of the country where the child is living or the country where the child comes from; civilizations different from his or her own and the natural environment. The final aim is to help prepare the child for responsible life in a free society, in the spirit of understanding, peace, tolerance, equality of sexes and friendship among all peoples, ethnic national and religious groups and persons of indigenous origin.176 However, from a different day of discussion there is one final aim that can be added here and that is, the importance of eradicating degrading and exploitative images of girls and women in the media and advertising. The values and models of behaviour that were portrayed contributed to the perpetuation of inequality and inferiority. 177 When the Committee was discussion Croatia and its ethnic divisions it made the following recommendations when examining Croatias first and second reports which
Presidential Decree 603, Article 43 Committee on the Rights of the Child, General Comment No. 1, 2001, CRC/GC/2001/1, para. 21. See also article 29. 176 Implementation Handbook for the Convention on the Rights of the Child, page 221, 222. 177 Committee on the Rights of the Child, Report on the eighth session, January 1995, CRC/C/38, para. 291
175 174
could be applicable to a country like the Philippines that also has internal, ethic divisions:
The Committee also recommends, in the interests of healing and trust-building within the country and in the spirit of article 17 of the Convention, that the State-controlled mass media should play an active role in the efforts to secure tolerance and understanding between different ethnic groups, and that the broadcasting of programmes 178 which would run counter to this objective come to an end. The Committee reiterates its recommendation that the State Party takes measures aimed at developing a culture of tolerance in the society at large through all possible channels, including the schools, the media and the lawthe Committee is also concerned with the lack of adequate measures to encourage the mass media to disseminate information which would promote the spirit of understanding of differences. The Committee urges the State Party to disseminate information and material of social and cultural benefit to the child, in line and with the spirit of articles 17 and 29 of the Convention. To that aim, the State Party should provide children with access to diversity of cultural, national and international sources, particularly taking into account the 179 linguistic and other needs of children who belong to a minority group.
One of the overall aims of the role of the media is the positive socialization of children. The Committee on the Rights of the Child consistently finds that the United Nations Guidelines for the Prevention of Juvenile Delinquency, the Riyadh Guidelines, provide appropriate standards for implementation of the Convention on the Rights of the Child. The relevant section on socialization and the media is as follows:
Socialization Processes Mass media Rule 40 -The mass media should be encouraged to ensure that young persons have access to information and material from a diversity of national and international sources. Rule 41 - The mass media should be encouraged to portray the positive contribution of young persons to society. Rule 42 - The mass media should be encouraged to disseminate information on the existence of services, facilities and opportunities for young persons in society. Rule 43 - The mass media generally, and the television and film media in particular, should be encouraged to minimize the level of pornography, drugs and violence portrayed and to display violence and exploitation disfavourably, as well as to avoid demeaning and degrading presentations, especially of children, women and interpersonal relations, and to promote egalitarian principles and roles. Rule 44 -The mass media should be aware of its extensive social role and responsibility, as well as its influence, in communications relating to youthful drug and alcohol abuse. It should use its power for drug abuse prevention by relaying consistent messages through a balanced approach. Effective drug awareness campaigns at all levels should be promoted.
178 179
Croatia CRC/C/15/Add.52, para. 20) Croatia CRC/C/15/Add.243, paras. 22, 35 and 36
5. Mass media to disseminate information and material aimed at the promotion of the childs of social, spiritual and moral well-being and physical and mental health The Committee on the Rights of the Child examines children and the media on an ongoing basis. This is especially true when they are encouraging the media to provide children with a positive influence. The Committee realizes of course that there will still be a substantial amount of media that is difficult for children to handle and understand on their own; it is therefore essential that there be forums such as schools where children can be made aware of how to deal with issues in the media. One important example of this is educational programmes that teach children how to DISCUSSION POINTS NO. 17-1 think about the issues they see in the media in a The Anti-Trafficking in critical and constructive manner. It is important to Persons Act limits the note that the Committee is not advocating censorship; ability to publish in fact it is suggesting quite the opposite. The information on this Committee wants to see a balance between protecting important subject children and giving them an accurate picture of the (Section 7) real world which means that both positive and Is this the kind of negative aspects should be given to children in censorship that should tandem. One important example of this is the issue of be avoided? gender imbalance an important issue that deserves If the media came up protection and should not be overshadowed by the with a way to handle issue of sexual exploitation (reference was also made these cases in a to the preservation of cultural diversity and the 180 specialized manner, avoidance of stereotypes). What is at issue for the Committee is how the recommendations about media content should be enforced. With Freedom of Expression being a basic right there is a preference for the industry to be selfregulating. Such regulation could be augmented by organizations of citizens and watchdog groups. However, some parties did not think that such solutions would be effective. In media such as the Internet, where pornography and pedophilia are the most easily accessible, there is a suggestion that hotlines be established so that information of harmful sites could be transmitted by any viewers. There was a further suggestion that the responsibility for screening should be shared between the industry, parents, teachers and children themselves. 181 In one of its General Comments, the Committee makes special note of the information needs of young children in both the kind of information that is beneficial and detrimental:
would they meet the requirements of both protecting and informing children?
180 181
CRC/C/57 para. 254. CRC/C/57 para. 254.
Early childhood is a specialist market for publishers and media producers, who should be encouraged to disseminate material that is appropriate to the capacities and interests of young children, socially and educationally beneficial to their well-being, and which reflects the national and regional diversities of childrens circumstances, culture and language. Particular attention should be given to the need of minority groups for 182 access to media that promote their recognition and social inclusion
When the Convention is read as a whole it is easy to see another area where the media can be a positive force on the development of children. Under Article 24, States are required to take measures to ensure that both parents and children are made aware of child health issues or general specific health issues and the media can be instrumental in these awareness campaigns:
Adolescents have the right to access adequate information essential for their health and development and for their ability to participate meaningfully in society. It is the obligation of States Parties to ensure that all adolescent girls and boys, both in and out of school, are provided with, and not denied, accurate and appropriate information on how to protect their health and development and practice healthy behaviours. This should include information on the use and abuse, of tobacco, alcohol and other substances, safe 183 and respectful social and sexual behaviours, diet and physical activity.
One such example of where the media can be helpful in child related health issues is HIV/AIDS awareness and education. The Committee points out that prevention and care information needs to be distributed while at the same time ignorance and stigmatization need to be addressed, and discrimination punished. The media can definitely help through formal channels such as education and child-targeted media and they are also expected to help disseminate information along informal channels in any way possible.184 The Child and Youth Welfare Code makes a number of provisions about children and the media. In Article 10, the child is to be given special protection and given opportunities and facilities by law and other means to, ensure and enable his fullest development physically, mentally, emotionally, morally, spiritually and socially in a healthy and normal manner and in conditions of freedom and dignity appropriate to the corresponding developmental stage.185 There is a negative right associated with this as well where a child has a right to protection from improper influences that could be prejudicial to his or her development.186 The Childrens Television Act of 1997187 was promulgated to enhance the positive influence of television on minors. One of the goals of the said law is to provide child-friendly programs in Philippine Television. By child-friendly programs, the law meant programs not specifically designed for viewing by children but which serve to
182 183
Committee on the Rights of the Child, General Comment No. 7, 2005, CRC/C/GC/7/Rev.1, para. 35 Committee on the Rights of the Child, General Comment No. 4, 2003, CRC/GC/2003/4, para. 26 184 General Comment No. 3, 2003, CRC/GC/2003/3, paras. 16 and 17 185 Presidential Decree 603, Article 10 186 Presidential Decree 603, Article 3(8) 187 Republic Act 8370.
further the positive development of children and contain no elements that may result in physical, mental and emotional harm to them. These include various formats and genre that appeal to children and are made available for all ages from early childhood to adolescence.188 Childrens involvement with television has also been made a matter of national concern every second Sunday in December as it is National Childrens Broadcasting Day. This is part of Responsible Television for Children Week that comprises the entire second week of December.189 On this day all television and radio stations in the Philippines are expected to commit at least three hours of their airtime to programs on or about children and produced especially for National Childrens Broadcasting Day. As an added stipulation at least one of these hours is required to be in primetime. 190 Programs produced for National Childrens Broadcasting Day are expected to:
be child-friendly, promote positive values, and enable children to exercise their rights to freedom of thought and expression as stated in the United Nations Convention on the Rights of the Childthe participation of children as talents or guests should be 191 encouraged.
It is also expected that employers, both in the public sector and the private sector, give their employees the time required to participate in workplace celebrations of National Childrens Broadcasting Day.192 For the other 364 days a year there is also emphasis on the promotion of programming for children on television and the radio. Every radio and television station in the Philippines must devote at least two hours of programming to public service which includes, matters related to the physical, intellectual and moral development of the young.193 The Philippines was also a part of the Asia Summit on Child Rights and the Media; there are a number of important suggestions that came out of the conference in Manila:
a. adopt policies that are consistent with the principles of non-discrimination and the best interests of all children; b. raise awareness and mobilize all sectors of society to ensure the survival, development, protection and participation of all children; c. address all forms of economic, commercial and sexual exploitation and abuse of children in the region and ensure that such efforts do not violate their rights, particularly their rights to privacy; d. protect children from material which glorifies violence, sex, horror and conflict; and e. not perpetuate discrimination and stereotypes.
Republic Act 8370, Sec 3(c) Proclamation No. 300 Declaring the Second Week of December of Every Year as "Responsible Television For Children Week" 190 Section 1 & 2, Republic Act 8296 191 Section 2, Republic Act 8296 192 Section 3, Republic Act 8296 193 Section 2, Presidential Decree No. 576-A
189
188
The media should also be of high quality, made specifically for them, and do not exploit them; and support their mental, social, moral and spiritual development. Enabling children to hear, see and express themselves, their culture, their languages and their life experiences through media which affirm their sense of self and community, while promoting an awareness and appreciation of other cultures is also a media responsibility. In much the same way, the media should be made accessible to the children at all times when they need and can use it. In consideration of the discrimination against the girl child, the conference seeks the media to provide for the girl child and counter the widespread discrimination against her. Likewise, children with special needs, in specially difficult circumstances, from indigenous communities, and in situations of armed conflict should be given attention by the media. Governments, media, NGOs, the private sector and local, regional and international agencies are encouraged to provide support (with funds and other resources) in developing critical understanding of all media forms among the children and their families. They are also sought to promote regional and international cooperation through the sharing of research, expertise and exchange of materials and programs, and networking among governments, NGOs, media organizations, educational institutions, advocacy groups and other agencies
6. The childs right to expression It is a principle of the Convention on the Rights of the Child that children are to be heard and given respect (Article 12) and that children have a right to free expression, religion, conscience and thought (Articles 13 & 14). According to the Committee on the Rights of the Child, this means that children have more than just a right to be consumers of media; they also have a right to participate in the media itself. For this requirement to be satisfied there needs to be media designed to communicate with children. There have been some important steps taken already, but according to the Committee, these are not enough. Children must not be involved merely as commentators but in all levels of the information process to avoid tokenism mechanisms are required to enhance youth participation in all levels of media production. To this end it is important to examine the specific context of different children to determine how they live and communicate and what influence they already have in a community so that influence and assistance will be given to the proper people and institutions. Such people go beyond the narrowly defined media and also include parents or those working with or for children. Therefore, when guidelines are produced to enhance childrens access to media they should draw attention to the positive potential of the media and the desirability of promoting collaboration and participation.194 The groundwork for child involvement in the Philippines was set out in R.A. 7658 in 1993 when the labor laws were amended so that children under the age of 15 were legally allowed to participate in media-related employment thereby facilitating greater child involvement with all areas of production.195
194 195
CRC/C/57 para. 253. Section 1, Republic Act No. 7658
The Committee has also decided that more needs to be done by all levels of government in implementing the principles of the convention in media reporting and in implementing the Convention through the media. Two main issues come out of this: (1) the way the media should approach children as sources of information and (2) childrens access to the media. The first issue concerns how children are to be interviewed or how something like a sexual assault against a child is to be portrayed. While these are very important issues and it is necessary to give children a medium through which to discuss them to continue to bring attention to them, special techniques are required to assure the best interests of the child. The second issue has seen positive steps through programs wherein child reporters present issues aimed at a child audience. There is also discussion about how it is the responsibility of all society to help eliminate stereotypes such as the violent teenager.196 An important step was taken in 1997 with the introduction of R.A. 8370, the Childrens Television Act. This Act contains a number of important provisions on childrens programming and getting children involved with the media. While the whole act is important, a number of its relevant details are summed up in the Charter of Childrens Television:
a) Children should have programs of high quality which are made specifically for them, and which do not exploit them. These programs, in addition to being entertaining, should allow children to develop physically, mentally and socially to their fullest potential; b) Children should hear, see and express themselves, their culture, languages and life experiences through television programs which affirm their sense of self, community and place; c) Children's programs should promote an awareness and appreciation of other cultures in parallel with the child's own cultural background; d) Children's programs should be wide-ranging in genre and content, but should not include gratuitous scenes of violence and sex; e) Children's programs should be aired in regular time slots when children are available to view and/or distributed through widely accessible media or technologies; f) Sufficient funds must be made available to make these programs conform to the highest possible standards; and g) Government, production, distribution and funding organizations should recognize both the importance 197 and vulnerability of indigenous children's television and the steps to support and protect it.
The Committee on the Rights of the Child is impressed with the Kabataan News Network (KNN) in the Philippines. KNN produces a thirty minute television show written and directed by children ages 13-18 with technical support and guidance from adult producers. The children are responsible for planning, shooting, reporting, conducting interviews, writing the scripts and narrating video stories. The show is aired on ABC 5, NBN and some segments of KNN are also aired in the Nickelodeon Channel. In 2008, the show had an audience of 250,000 viewers per week. Over 67 half-hour episodes have been produced and aired by young people from different parts of the country. The
196 197
CRC/C/57 para. 255. Section 8, Republic Act 8370
only concern from the Committee is that the show may not have long-term sustainability as it is expensive and a major undertaking.198 7. Protection of the child from information or material injurious to his or her wellbeing The Committee has looked at how to protect children from media content that could be harmful to them such as brutal violence or pornography. In the Philippines, children have the right to seek out information of interest to them. As citizens of the country, they will not be denied access to official records and documents pertaining to official acts, transactions or decisions, as well as to government research data.199 A childs right to information does not extend to matters injurious to his or her moral and spiritual well-being. Recognition by the State of the childs right to appropriate information carries with it the duty to protect the child from harmful materials. Accordingly, the Constitution, while protecting the freedom of the press, does not protect obscenity. It is an established rule that Such utterances are not essential part of any exposition of ideas and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.200 The Child and Youth Welfare Code seeks to deter unwholesome entertainment and advertisements.201 Thus, it makes it the duty of all civic and youth associations to bring to the attention of the proper authorities the exhibition of indecent shows, as well as, the publication, sale, or circulation of pornographic materials. It likewise provides that the Board of Censors or the Radio Control Board may prohibit any movie, television or radio program offensive to the properties of language and behavior upon the representation of any civic association. Furthermore, commercial advertisements and trailers which are improper for children under eighteen years of age due to their advocating or unduly suggesting violence, vices, crimes and immorality shall not be shown in any movie theater where the main feature is for general patronage. Nor shall they be used or shown during or immediately before and after any television or radio program for children. The Movie and Television Review and Classification Board created by P.D. 1986 plays a significant role in the regulation of entertainment and advertisement. An important function of the Board is to approve or disapprove of media, to delete objectionable portions of motion pictures, television programs or publicity materials. This includes advertisements that are objectionable according to contemporary Filipino
CRC/C/PHL/3-4 20 March 2009, para 63. Article III, Section 7, 1987 Constitution. 200 Chaplinsky v. New Hampshire, 315 U.S. 572 (1942) as quoted by Joaquin G. Bernas, S.J., The 1987 Constitution of the Republic of the Philippines: A Commentary, (Manila: Rex Bookstore, 1996), p. 248. 201 Article 95, P.D. 603 (1974).
199 198
standards for being immoral, indecent, contrary to law and/or good customs or injurious to the prestige of the Republic of the Philippines or its people.202 It is also unlawful for persons below 18 years of age to enter, to misrepresent or make use of any false evidence about his or her age in order to gain admission into a movie house or theater showing a motion picture classified as Restricted or For Adults Only by the Board. It shall be unlawful for any employee of a movie house or theater to sell to, receive from, another person known to the former to be below 18 years of age any admission ticket to the exhibition of motion pictures classified Restricted or For Adults Only. In case of doubt as to the age of the person seeking admission, the purchaser shall be required to exhibit his or her residence certificate or other proof of age.203 The parents must also share the burden of protecting the children against injurious materials that will corrupt the minds of their children. They shall provide their children with good and wholesome reading materials taking into consideration his age and emotional development. They shall guard against the introduction in the home of pornographic and other unwholesome publications.204 In the following General Comment by the Committee it shows the concern they have for children that are still in early childhood and at one of the most important points of development:
Rapid increases in the variety and accessibility of modern technologies, including Internet-based media, are a particular cause for concern. Young children are especially at risk if they are exposed to inappropriate or offensive material. States Parties are urged to regulate media production and delivery in ways that protect young children, as well as support 205 parents/caregivers to fulfil their childrearing responsibilities in this regard (art. 18).
8. Children, media and justice In the Philippines, children are protected in a number of ways when they interact with the justice system. Section 14 of the Juvenile Justice and Welfare Act is aptly titled The Role of the Mass Media. This section of the Act reiterates a number of important provisions set out elsewhere in this chapter: the media is to play an active role in promoting the rights of children, they are to relay consistent messages through a balanced approach, they are to maintain high professional standards when reporting on children in conflict with the law, they are to avoid undue sensationalizing and, above all, they shall be governed by the best interests of the child.206 Furthermore, Section 60 of the same Act has prohibitions against labeling and shaming. These prohibitions are directed at the competent authorities but it is possible that this could also refer to the media.207 The Rules and Regulations Implementing Juvenile Justice and Welfare Act expand on the responsibilities of the media under the Juvenile Justice and Welfare Act.
202 203
Section 3 (c), P.D. 1986 (1974). Section 9, P.D. 1986 (1974). 204 Article 51, P.D. 603 (1974). 205 Committee on the Rights of the Child, General Comment No. 7, 2005, CRC/C/GC/7/Rev.1, para. 35 206 Section 14, Juvenile Justice and Welfare Act 207 Section 60, Juvenile Justice and Welfare Act
Media practitioners must follow the guidelines set out in the Guidelines for Media Practitioners on the Reporting and Coverage of Cases Involving Children issued by the Special Committee for the Protection of Children. The media is also encouraged to (1) ensure that children have access to information and material from a diversity of national and international sources; (2) portray the positive contribution of children to society; and (3) disseminate information on the existence of services, facilities and opportunities for children in society.208 There is also a prohibition in Section 44 of the Anti-Violence Against Women and Their Children Act of 2004 that if a party publishes any private information about a victim or a family member then they will be liable to the contempt power of the court.209 See Article 16. 9. Freedom of expression vs. protection of children While it would appear to be the intention of the Committee on the Rights of the Child that the medias protection of children is voluntary, it is possible that the media will not comply. As discussed above, laws have been passed that would punish those that publish or produce information about children when it is not in their best interest. So far these types of laws have not been challenged, but if they are they will more than likely be subject to a three part test described in Social Weather Stations, Incorporated and Kamahalan Publishing Corporation, doing business as Manila Standard vs. Commission on Elections. In this test the government must establish that (1) the prohibition of their law has a rational connection to the objective of their law; (2) that the law is narrowly tailored to address the evils it seeks to prevent or abolish and (3) that the curtailment of freedom is limited in duration and in scope.210 As this issue has not reached the court it is unclear what their decision concerning this issue would be but there are two important notes to be taken from Francisco Chavez v. Raul M. Gonzales. The first is that in this recent decision the Supreme Court states that it does not have a problem striking down legislation that it deems to be unconstitutional. The second is that the court pays deference to the US decision of American Court in Federal Communications Commission v. Pacifica Foundation (438 U.S. 726) and in this case the court relied on the fact that protecting children was an important goal. This could suggest that if any of the child-protecting legislation discussed in this chapter is contested, the rights of the child would be important enough to limit the rights of the media.211 10. Production and dissemination of childrens books UNESCO has for many years promoted publication of childrens literature, together with the major professional bodies and NGOs. The Committee on the Rights
Rule 20(c), JJWC RESOLUTION NO. 4-2006 Section 44, Anti-Violence Against Women and Their Children Act of 2004 RA 9262 210 Social Weather Stations, Incorporated and Kamahalan Publishing Corporation, doing business as Manila Standard vs. Commission on Elections, G.R. No. 147571 211 Francisco Chavez v. Raul M. Gonzales, G.R. No. 168338
209 208
of the Child commends states that have established libraries in schools212 or encouraged reading through educational and library programs. 213 On the other hand, it expresses concern that in other states the quality and availability of literature is deteriorating while the lack of instruments to protect children from information is on the rise.214 In 1995 Congress enacted R.A. 8047, the Book Publishing Industry Development Act, to support the book industry and literacy more broadly in the Philippines. A number of its provisions were aimed directly at children and those who did not traditionally have access to the majority of books available in the Philippines. In the declaration of policy, the Act acknowledges that, Books are the most effective and economical tools for achieving educational growth, for imparting information and for recording, preserving, and disseminating the nations cultural heritage.215 What follows in the Act is a number of purposes and objectives, the one most pertinent to children being the promotion of readership amongst the young through, an efficient nationwide system of libraries and reading centers especially in the rural areas.216 There is also support for indigenous children and minorities as the Act is intended to promote indigenous authorship and the translation of books into the various languages spoken in the Philippines. Furthermore, the National Book Development Plan is required to make provisions for the production of books and other reading materials that are appropriate for teaching preschool and school children as well as the handicapped and ethnic groups.217 However, the involvement of children with operations is forbidden as no person under 30 is allowed on the National Book Development Board.218 The rules for implementing the Book Publishing Industry Development Act include special financial provisions for the development of literature for children. In these rules the definition of book is based on that of the United Nations Educational Scientific and Cultural Organization (UNESCO) and imported books meeting this definition get a special status for purposes of taxes and duty free importation. However, the rules also include special provisions that go beyond the UNESCO definition to include, childrens books which may be less than forty eight (48) pages; childrens educational comics; boomics, which are a com bination of a book and a comics.219 Furthermore, the objectives the National Book Policy contain a number of different provisions to promote access for children and other underrepresented parts of the population:
c. to ensure an adequate, affordable, and accessible supply of books for all segments of the population;
212 213
Madagascar CRC/C/15/Add.218, para. 36 Latvia CRC/C/LVA/CO/2, paras. 28 and 29 214 Kazakhstan CRC/C/15/Add.213, paras. 34 and 35) 215 Section 2, REPUBLIC ACT NO. 8047 216 Section 4, REPUBLIC ACT NO. 8047 217 Section 5, REPUBLIC ACT NO. 8047 218 Section 7, REPUBLIC ACT NO. 8047 219 Rule 2, Section 2, Rules and Regulations Implementing R.A. No. 8047,
d. to promote book readership especially among the young and neoliterates, through programs promoting literary and good reading habits, book fairs and exhibits, and an efficient nationwide system of libraries and reading centers especially in the rural areas; e. to promote the development of indigenous authorship and of translations among various language groups in the country; f. to promote the translation of publication of scientific and technical books and classic 220 works in literature and the arts.
Additionally, the National Book Development Board is expected to undertake a planning process and adopt strategic measures for the realization of the components of the National Book Development Plan. Some of these components are directly applicable to children and communities with less access to books in general, provisions for producing books or other periodicals, such as appropriate or selected comics as instructional or teaching materials for such various categories of readers in the country as pre-school children and school children, school drop-outs,the handicapped,and ethnic groups; [and] measures designed to redress the imbalance between demand of good books and other reading materials and the supply thereof in different parts of the country.221
220 221
Rule 3, Section 1, Rules and Regulations Implementing R.A. No. 8047 Rule 3, Section 2, Rules and Regulations Implementing R.A. No. 8047
Parents joint responsibilities assisted by the State

Article 18
1. State Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsible for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern. 2. For the purpose of guaranteeing and promoting the rights set forth in the present Convention, States Parties shall render appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities and ensure the development of institutions, facilities and services for the care of children. 3. States Parties shall take all appropriate measures to ensure that children of working parents have the right to benefit from child-care services and facilities for which they are eligible.
Article 18 concerns the balance of responsibilities between the childs parents and the State, and particularly emphasizes State support for parents in the performance of their responsibilities. Article 18 must be read in conjunction with Article 5 (parental and family duties and rights, the childs evolving capacities) and Articles 3(2) and 27 (the States responsibility to assist parents in securing that children have adequate protection and care and an adequate standard of living). These four articles of the Convention, taken together, make clear that parents have primary responsibility in securing the best interests of the child as their basic concern, but that this responsibility is circumscribed by the childs rights under the Convention and may be shared with others such as members of the wider family. The State must take appropriate steps to assist parents in fulfilling their responsibilities, and if parents cannot manage this, the State must step in to secure the childs rights and needs. Article 10 of the International Covenant on Economic, Social and Cultural Rights provides that: The widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society, particularly for its establishment and while it is responsible for the care and education of dependent children and Special measures of protection and assistance should be taken on behalf of all children and young persons without any discrimination. Articles 23 and 24 of the International Covenant on Civil and Political Rights repeat these principles and, in addition, provide: No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence (Article 17). The Committee on Economic, Social and Cultural Rights states in a General Comment: In this and other contexts, the term family should be interpreted broadly and in accordance with appropriate local usage.222 The requirements of the Human Rights Committee are more detailed:
Responsibility for guaranteeing children the necessary protection lies with the family, society and the State. Although the Covenant does not indicate how such responsibility is to be apportioned, it is primarily incumbent on the family, which is interpreted broadly to include all persons composing it in the society of the State Party concerned, and particularly on the parents, to create conditions to promote the harmonious development of the childs personality and his enjoyment of the rights recognized in the Covenant. However, since it is quite common for the father and mother to be gainfully employed outside the home, reports by States Parties should indicate how society, social institutions and the State are discharging their responsibility to assist 223 the family in ensuring the protection of the child.
1. Parents primary responsibility for the upbringing and development of the child Article 18 makes it clear that parents are to have the primary role in raising their children. However, the Convention clarifies in other areas that there are a number of
Committee on the Rights of the Child, General Comment No. 5, 1994, HRI/GEN/1/Rev.8, para. 30, p. 31. 223 Committee on the Rights of the Child, General Comment No. 17, 1989, HRI/GEN/1/Rev.8, para. 6, p. 184.
222
social institutions responsible for a childs development and well-being. The Committee on the Rights of the Child does not grant absolute deference to these other institutions. For example, when the Committee wrote on the Democratic Republic of Congo they were concerned that community leaders might be replacing the role of parents something that could negatively affect children.224 On its surface, Article 18 would appear to focus more on the rights of parents than the rights of children. However, the article is actually a list of responsibilities for the parents. For example, the parents have a responsibility to their childs development and if the childs development is being hindered by actions of the parents that could be avoided then they are failing in their responsibilities.225 While the article mandates the role parents play in the upbringing of their children, this mandate has no effect, at least in a legal sense. It must be noted that the Convention is not binding on individuals but only on states. Therefore the purpose of Article 18 is to get lawmakers in their respective countries to think less about the parentchild dichotomy as one of rights and ownership, but rather as one of full of responsibilities. States can then re-draft or change their laws to reflect this way of thinking. However, many, if not all, states cannot reasonably control all of the parents within their borders. This being said, states are nonetheless expected to draft laws in accordance with parental responsibility. This is the reason for the Committees extreme concern with the law in Sudan imposing severe legal penalties for women who are pregnant out of wedlock. The unintended consequence of this law is womens abandonment of their newborn children, resulting to an extremely low survival rate.226 It is therefore important that lawmakers look at all of the consequences of their law, both intended and unintended, to make sure that the best interests of children are being addressed. The best interests of the child are obviously subjective. What is best for one child will not necessarily be best for another. Both parents and professionals disagree over what is best for children so neither parents nor states can be expected to have a grasp that is absolute. Thus, it is the purpose of the Convention to protect children. In most cases, the rights in the Convention provide a good outline for what is best for the child. In other words, and infringement of the rights in this Convention are probably not in the childs best interests.227 The Committee has also made special note of state and parental responsibilities for very young children. Traditionally, children have been perceived as immature beings and childhood has been viewed as a required time to allow children to develop into mature adults.
224
Committee on the Rights of the Child, Democratic Republic of the Congo, CRC/C/15/Add.143, para.
36.
225 226
Implementation Handbook, 232. Committee on the Rights of the Child, Sudan CRC/C/15/Add.190, para. 37 227 Implementation Handbook, 233.
In contrast, the Convention requires that even the youngest of children are to be respected as persons in their own right. The Committee further highlights a number of situations that impact on the welfare of a young person such as inadequate, abusive, or inconsistent parenting. These can come from a number of sources such as the individual parent, laws, or traditions. They affect the time in a childs life when parental responsibility is the most extensive and intensive and touch on every element of the Convention. Therefore, the well-being of the child is heavily dependant on the wellbeing and resources of the caregiver.228 Definitions of child abuse can be found in Philippine law under R.A. 7610 as follows:
Section 3. Definition of Terms. (a) "Children" refers to person below eighteen (18) years of age or those over but are unable to fully take care of themselves or protect themselves from abuse, neglect, cruelty, exploitation or discrimination because of a physical or mental disability or condition; (b) "Child abuse" refers to the maltreatment, whether habitual or not, of the child which includes any of the following: (1) Psychological and physical abuse, neglect, cruelty, sexual abuse and emotional maltreatment; (2) Any act by deeds or words which debases, degrades or demeans the intrinsic worth and dignity of a child as a human being; (3) Unreasonable deprivation of his basic needs for survival, such as food and shelter; or (4) Failure to immediately give medical treatment to an injured child resulting in serious impairment of his growth and development or in his permanent incapacity or death. (c) "Circumstances which gravely threaten or endanger the survival and normal development of children" include, but are not limited to, the following; (1) Being in a community where there is armed conflict or being affected by armed conflictrelated activities; (2) Working under conditions hazardous to life, safety and normal which unduly interfere with their normal development; (3) Living in or fending for themselves in the streets of urban or rural areas without the care of parents or a guardian or basic services needed for a good quality of life; (4) Being a member of a indigenous cultural community and/or living under conditions of extreme poverty or in an area which is underdeveloped and/or lacks or has inadequate access to basic services needed for a good quality of life; (5) Being a victim of a man-made or natural disaster or calamity; or (6) Circumstances analogous to those abovestated which endanger the life, safety or normal development of children. (d) "Comprehensive program against child abuse, exploitation and discrimination" refers to the coordinated program of services and facilities to protected children against: (1) Child Prostitution and other sexual abuse; (2) Child trafficking; (3) Obscene publications and indecent shows; (4) Other acts of abuses; and
228
Committee on the Rights of the Child, General Comment No. 7, 2005, CRC/C/GC/7/Rev.1, paras. 5, 18
and 20.
(5) Circumstances which threaten or endanger the survival and normal development of 229 children.
The responsibility of the parent becomes no less complicated as the child gets older. Parents have a responsibility to take into account the views, age, and maturity of their respective children. Parents must also create an environment of supportiveness and guidance where a child can exercise their rights. Families must see their children as active right holders who are on their way to becoming full and responsible citizens.230 Under the Constitution of the Philippines, the family is talked about in a number of places and the authority of parents in bringing up their children touches a number of subjects. In addition to the role of the family, the State also has to ensure the well-being of the children within its jurisdiction. Some important examples231 are reprinted below:
ARTICLE II Declaration of Principles and State Policies Section 12. The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution. It shall equally protect the life of the mother and the life of the unborn from conception. The natural and primary right and duty of parents in the rearing of the youth for civic efficiency and the development of moral character shall receive the support of the Government. ARTICLE XV The Family Section 1. The State recognizes the Filipino family as the foundation of the nation. Accordingly, it shall strengthen its solidarity and actively promote its total development. Section 2. Marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State. Section 3. The State shall defend: (1) The right of spouses to found a family in accordance with their religious convictions and the demands of responsible parenthood; (2) The right of children to assistance, including proper care and nutrition, and special protection from all forms of neglect, abuse, cruelty, exploitation and other conditions prejudicial to their development; (3) The right of the family to a family living wage and income; and (4) The right of families or family associations to participate in the planning and implementation of policies and programs that affect them. Section 4. The family has the duty to care for its elderly members but the State may also do so through just programs of social security. ARTICLE XIV Education
An Act Providing for Stronger Deterrence and Special Protection Against Child Abuse, Exploitation and Discrimination, and for Other Purposes [Special Protection of Children Against Abuse, Exploitation and Discrimination Act], Republic Act No. 7610, 3 (1992). 230 Committee on the Rights of the Child, General Comment No. 4, CRC/GC/2003/4, para. 7. 231 PHIL. CONST. arts. II, 12; XV, 1-4; & XIV, 1-2.
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Section 1. The State shall protect and promote the right of all citizens to quality education at all levels and shall take appropriate steps to make such education accessible to all. Section 2. The State shall: (1) Establish, maintain, and support a complete, adequate, and integrated system of education relevant to the needs of the people and society; (2) Establish and maintain, a system of free public education in the elementary and high school levels. Without limiting the natural rights of parents to rear their children, elementary education is compulsory for all children of school age;
The Child and Youth Welfare Code also provides a number of important points about the responsibility of parents to their children. In the General Principles of the Code it is recognized that parents have the right and duty to raise their children and the government should support them in this endeavor. 2. Common responsibility of both parents Until recently, it was generally accepted that the father and mother both had different responsibilities towards their children. That is why it is particularly important to emphasize that the Convention requires the equal participation of both parents. The Convention provides that the equal participation of both parents in all aspects of a childs life is a childs human right. This includes everyday responsibilities as well as financial responsibilities and legal rights. This is a reaffirmation of Article 5 of the Convention on the Elimination of All Forms of Discrimination against Women (1979) where it was set out that parents have equal responsibilities to their child because this is in the best interest of the child. The Committee would like to see the responsibilities of both parents included in any educational training that is provided for the parents (see below).232 There is a further understanding by the Committee that there are a number of factors external to the family such as employment or poverty that do not allow both parents to be in the lives of their children. The Committee has no concrete solutions but it encourages states to take all measures necessary to help parents meet their commitments under Article 18 including the development of laws, policies, and social/educational programs.233 The Committee has specific concerns in the Philippines where one of the parents does not live in the country due to work. The Committee wants to see greater enforcement and implementation of Republic Act No. 8042 (Act to Institute the Policies of Overseas Employment and Establish a Higher Standard of Protection and Promotion of the Welfare of Migrant Workers, Their Families and Overseas Filipinos in Distress, and for Other Purposes). The Committee wants the Government of the Philippines to make agreements with countries where Filipino parents as working so that parents can meet their responsibilities, family reunification will be possible, and children can be
232 233
Committee on the Rights of the Child, United Kingdom CRC/C/15/Add.34, para. 30. Committee on the Rights of the Child, Mongolia CRC/C/15/Add.264, para. 32.
brought up in a proper environment. Additionally, the Committee appreciates the childsensitive family counseling that is offered for overseas workers and their children but wants to see it become developed even further.234 Maintenance or child support is another issue that concerns the Committee. The Committee does not see the government doing enough to enforce maintenance on parents living overseas or to support children living overseas. It would like to see greater implementation of the relevant legislation such as the Family Code and the Child Protection Act of 1992 and it would also like to see the Philippine Government take greater steps to make agreements with other countries for the enforcement of maintenance.235 The Committee would further like to see the relevant provisions of the Solo Parents Welfare Act of 2000 (Republic Act 8972) considered when looking at this subject matter.236 There are exceptions and different circumstances under Philippine law. One of which is contained in the Anti-Violence Against Women and Their Children Act of 2004. In this Act, if a woman is a victim of violence then she will get custody of the children and will be entitled to support. If a child suffers from a disability and is under seven then the mother automatically gets custody and support, unless the court finds a compelling reason not to. Battered Woman Syndrome shall not be a compelling reason; it shall not disqualify her from custody. However, the individual that is responsible for inflicting the Battered Woman Syndrome will never be awarded custody.237 a. No distinction with regard to the status of the parents married or not The Committee has made recommendations to Saint Kitts and Nevis that could be applied to any countries where parents do not formally or informally share responsibility. It encourages the State to take any measures, including legal, to ensure that the rights of children with non-married parents are protected. It suggested that the State should seek assistance from UNICEF and the World Health Organization if it so required.238 There is further concern from the Committee regarding the issue of teenage pregnancy and the fact that this often results to single parenting. Teenage pregnancy can also damage the health of both the mother and the child who are both children under the terms of the Convention. The Committee is worried about higher instances of sexual abuse, domestic violence, neglect, abandonment, and legal conflict for children in these cases.239
Committee on the Rights of the Child, CRC/C/15/Add.259 paras. 44-45 & Committee on the Rights of the Child, CRC/C/PHL/3-4 paras. 120-121. 235 Committee on the Rights of the Child, CRC/C/15/Add.259 paras. 46-47. 236 Committee on the Rights of the Child, CRC/C/PHL/3-4 para 124. 237 An Act Defining Violence Against Women and Their Children, Providing for Protective Measures for Victims, Prescribing Penalties Therefore, and for Other Purposes [Anti-Violence Against Women and Their Children Act of 2004], Republic Act No. 9262, 28 (2004). 238 Committee on the Rights of the Child, Saint Kitts and Nevis CRC/C/15/Add.104, para. 21. 239 Committee on the Rights of the Child, Jamaica CRC/C/15/Add.32, para. 13.
234
Under the Family Code of the Philippines, there is a difference of treatment between legitimate and illegitimate children. Legitimate children have the right to the surnames of both their father and their mother and to receive support from both parents and extended family. The illegitimate child is only entitled to the surname of the mother and is to be under the parental authority of the mother but will be entitled to support that conforms to the Code.240 The recognition of the father that the child is his will not grant him custody. However, it could be enough to order support from him. Only if the mother defaults can the father obtain custody.241 However, case law would appear to conflict with this distinction between legitimate and illegitimate children. There seems to be no more distinction regarding parental authority that depends on the legitimacy of the child.242 b. Single-parent families Article 27 of the Convention requires that states enforce the financial obligations of both parents (in practice this is usually required from fathers) but Article 18 speaks of common responsibility such that both parents will be active in the upbringing of the child even if parents are unmarried.243 c. Parental authority A Filipino family is normally constituted by the father, a mother, and the children. At times, it extends its ties to embrace even the grandparents, cousins, aunts, and uncles. The law, however, limits recognition of family relations only to those between husbands and wives, parents and children, other ascendants and descendants, and brothers and sisters, whether full or half-blood.244 In every family, the parents jointly exercise parental authority over the person and property of their unemancipated children as their natural right and duty. The exercise of such parental authority demands the assent to the responsibilities of caring for and the rearing of the children for civic consciousness and efficiency and the development of their moral, mental and physical character, and well-being.245 In case law, parental authority is defined as follows:
Parental authority or patria potestas in Roman Law is the juridical institution whereby parents rightfully assume control and protection of their unemancipated children to the extent required by the latter's needs. It is a mass of rights and obligations which the law grants to parents for the purpose of the children's physical preservation and development, as well as the cultivation of their intellect and the education of their heart and senses. As regards parental The Family Code of the Philippines [FAMILY CODE], Executive Order No. 209, arts. 174-176 (1987) & Briones v. Miguel, G.R. No. 156343 (October 18, 2004). 241 David v. Court of Appeals, G.R. No. 111180 (November 16, 1995) & Briones, G.R. No. 156343. 242 Dempsey v. RTC Branch LXXV, G.R. Nos. 77737-38, (August 15, 1988). 243 Implementation Handbook, 235. 244 FAMILY CODE, art. 150. 245 FAMILY CODE, art. 209.
240
authority, there is no power, but a task; no complex of rights, but a sum of duties; no sovereignty 246 but a sacred trust for the welfare of the minor.
Joint parental authority goes on to be defined as:

The law vests on the father and mother joint parental authority over the persons of their common children. In case of absence or death of either parent, the parent present shall continue exercising parental authority. Only in case of the parents death, absence or unsuitability may 247 substitute parental authority be exercised by the surviving grandparent.
Article 220 of E.O. 209, as amended, enumerates the responsibilities, rights and duties of parents with respect to their children, as follows:
1. To keep them in their company, to support, educate and instruct them by right precept and good example, and to provide for their upbringing in keeping with their means; 2. To give them love and affection, advice and counsel, companionship and understanding; 3. To provide them with moral and spiritual guidance, inculcate in them honesty, integrity, selfdiscipline, self-reliance, industry and thrift, stimulate their interest in civic affairs and inspire in them compliance with the duties of citizenship; 4. To enhance, protect, preserve and maintain their physical and mental health at all times; 5. To furnish them with good and wholesome education materials to supervise their activities, reaction and association with others, protect them from bad company, and prevent them from acquiring bad habits detrimental to their health, studies and morals; 6. To represent them in all matters representing their interest; 7. To demand from them respect and obedience; 8. To impose discipline on them as may be required under the circumstances; and, 9. Such other duties as imposed by law upon parents and guardians.
The parents, in the exercise of parental authority, can instill discipline on their children according to their standards.248 Although the law would not normally interfere with this task of the parents, parental authority is not a license to beat or maltreat children in the guise of enforcing discipline. Corporal punishment as a form of discipline is discouraged. Republic Act 7610, as amended (also known as Special Protection of Children against Child Abuse, Exploitation and Discrimination Act of June 17, 1992), provides increased protection for children against all forms of abuse and battering. If a child happens to be so obnoxious and defiant and can no longer be disciplined, it is not for the parents to inflict harsh punishment. The parents may petition the court where the child resides for an order to provide disciplinary measures upon the child. The said child will then be committed for not more than thirty days in entities or institutions engaged in child care or in duly recognized childrens homes.249 Parental authority, as a rule, extends only to such acts which will transform and develop the child into a useful and responsible citizen and. It ends when the exercise of such authority is too excessive and perilous to the interest of the child. In other words, parental authority is not a protective mantle to cloak over child abuse and exploitation.
Santos v. Court of Appeals, G.R. No. 113054 (March 16, 1995). Santos, G.R. No. 113054. 248 CHILD AND YOUTH WELFARE CODE, art. 45. 249 FAMILY CODE, arts. 223-224.
247 246
Parental authority terminates permanently when a person reaches the age of majority, which, according to the law, is attained at the age of eighteen years. 250 The obligation of the children to show respect and love for their parents still continues. Children should always observe respect and reverence towards their parents and are obliged to obey them as long as the children are under their parental authority.251 d. Substitute parental authority In case of death, absence, or unsuitability of the parents, substitute parental authority shall be exercised by the surviving grandparent, the oldest brother or sister over eighteen years of age, unless unfit or disqualified, or the childs actual cu stodian who is over eighteen years of age.252 In case of foundlings, abandoned, neglected, or abused children and other children similarly situated, parental authority shall be entrusted in summary judicial proceedings to heads of childrens homes, orphanages, and similar institutions duly accredited by the proper government agency. The persons exercising substitute parental authority over the children also assume the duties and responsibilities of the parents as discussed above. They shall be civilly liable for the injuries and damages caused by the acts or omissions of their unemancipated wards living in their company and under their parental authority, subject to the appropriate defenses provided by law. e. Effect of nullity, annulment, or legal separation on parental authority The Convention is also concerned with what happens to children when parents separate subsequent to their birth. In many cases, the mother is given the responsibility for the initial upbringing of the child. This responsibility is transferred to the father at some later period. It is important to harmonize such states with Article 16(d) of the Convention on the Elimination of All Forms of Discrimination against Women so that women and men have equal parental responsibility regardless of marital status. If there is a need for the parties to separate and for the governing authority to assign custody to only one parent, then this will be done in the childs best interest and not with any deference to any preconceived notions of which parent is always the best party.253 In this instance, the Convention on the Rights of the Child is supported by the International Covenant on Civil and Political Rights in that Article 23(4) guarantee equal rights and responsibilities to each spouse at each part of the marriage including its dissolution. Any discriminatory practice during the proceedings of a separation, divorce,
An Act Lowering the Age of Majority From Twenty-One to Eighteeen Years, Amending for the Purpose Executive Order Numbered Two Hundred Nine, And for Other Purposes, Republic Act No. 6089 (1989). 251 FAMILY CODE, art. 211. 252 Id. art. 216. 253 Implementation Handbook, 236.
250
custody hearings, or any legal measure that affects the rights and responsibility of parents must be strictly prohibited.254 Article 213 of the Family Code establishes that when parents separate, parental authority will be excised by the parent the Court decides upon and the choice of a child who is at least 7 years old shall be taken into consideration. However, no child below seven is to be separated from his or her mother without compelling grounds, this is known as the tender-age presumption. The default of maternal custody can only be overcome by compelling evidence of the mothers unfitness such as neglect, abandonment, unemployment, immorality, habitual drunkenness, drug addiction, maltreatment of the child, insanity, affliction with a communicable disease,255 or homosexuality. However, it should be noted that homosexuality, on its own, is not enough. It must be carried on in front of the child or to the detriment of the childs development.256 The rationale for granting default custody to the mother was explained by the Code Commission:
The general rule is recommended in order to avoid many a tragedy where a mother has seen her baby torn away from her. No man can sound the deep sorrows of a mother who is deprived of her child of tender age. The exception allowed by the rule has to be for 'compelling reasons' for the good of the child; those cases must indeed be rare, if the mother's heart is not to be unduly hurt. If she has erred, as in cases of adultery, the penalty of imprisonment and the divorce decree (relative divorce) will ordinarily be sufficient punishment for her. Moreover, moral dereliction will not have any effect upon 257 the baby who is as yet unable to understand her situation.
Even if custody is awarded to the mother it does not mean that the father does not get to see his child(ren) nothing in the Article prevents a father from seeing or visiting his children.258 Also, if a father has custody over an illegitimate child and the mother contends this, the father may be allowed to retain custody while proceedings are ongoing. In other words, if a father has custody of a child, it may not be in the best interest of the child to remove him from the familiar surrounding of the fathers home and care.259 3. Role of the State a. Principle of Parens Patriae Parens Patriae literally means, Parents of the country. In legal parlance, it refers only to the duty of the State to defend and care for its vulnerable and disabled members, most particularly the children. This duty of the State is inherent and co-exists only with the duty of the persons exercising parental authority because its nature is supportive and complementary.
254
Human Rights Committee, General Comment No. 19, 1990, HRI/GEN/1/ Rev.8, paras. 8 and 9, p. 189. 255 Gamboa-Hirsch v. Court of Appeals, G.R. No. 174485 (July 11, 2007). 256 Pablo-Gualberto v. Gualberto, G.R. No. 154994 (June 28, 2005). 257 Perez v. Court of Appeals, G.R. No. 118870 (March 29, 1996). 258 Salientes v. Abanilla, G.R. No. 162734 (August 29, 2006) 259 Tonog v. Court of Appeals , G.R. No. 122906 ( February 7, 2002).
The care that children deserve is established in the Philippines under the Child and Youth Welfare Code. It is set out in this Code that all children have the right to care, assistance, and protection from the State. This becomes particularly important when parents or guardians are unable to provide their children with the requirements needed for growth, development, and improvement.260 Furthermore, it is the responsibility of the health, education, and welfare branches of the government to assist parents in maintaining the health of their children.261 b. State Policies The Committee on the Rights of the Child has identified what it would like to see from states in regard to policy. If parents are having difficulty raising their children, the State, within its ability, is expected to assist them regardless of the cause of the difficulty. Once the State identifies families at risk, it is expected to step in with practical measures such as financial benefits, day care, home helps, equipment, psychological and professional help, etc. It is essential that the services be universal and do not require a needs-based test. If parents need to apply for services, then it diminishes the chance they will benefit from them as there might be a stigma, lack of knowledge about the services, or complicated and difficult application process.262 In the exercise of its role as parens patriae, the State basically extends assistance and support. The Constitution affirms the primary right and duty of the parents in the caring and developing the moral character of the child as well as the rearing of the child for civic efficiency. The State comes in to assist parents when they are unable to provide for the needs of the children. To this end, the State commits itself to defend the right of the family to a living wage and an income sufficient to provide a decent standard of living for the children. The State considers children as one of the most important assets of a nation and endeavors, at all times, to defend their rights to assistance, including proper care, and nutrition. It commits itself, likewise, to provide special protection to children against all forms of neglect, abuse, cruelty, exploitation, and other conditions prejudicial to their development. All instrumentalities and bodies of the State shall, therefore, forge efforts to promote childrens welfare and enhance their opportunities for a useful and happy life. The actions to be undertaken by the State are governed by policies enshrined in the Constitution. One fundamental policy is the States recognition of the vital role of the youth in nation-building. By virtue of this policy, the Constitution mandates the State to promote and protect the youths physical, moral, spiritu al, intellectual, and social wellbeing. It is further tasked to inculcate in the youth patriotism and nationalism, and encourage their involvement in public and civic affairs.
260 261
CHILD AND YOUTH WELFARE CODE, art. 3 (10). Id. art. 11. 262 Implementation Handbook, 237-238.
Concern of the State for the youth is embodied in P.D. 603 which took effect in 1975. Among its important provisions is the creation of the Council for the Welfare of the Children tasked to coordinate the implementation and enforcement of all laws related to the promotion of child and youth welfare and to formulate policies and device, introduce, develop, and evaluate programs and services for their general welfare. Chapter five of the same declaration establishes the assistance that the government of the Philippines is expected to administer to parents. If the child has unique health problems then the government will be expected to assist the parents with additional costs. Financial aid will also be given to parents in need to avoid the placement of children in institutions. If one parent is deceased or is not able to be a part of the family, the remaining parent may also qualify for financial assistance.263 The Child and Youth Welfare Code also establishes general duties of the community towards children. The community in this sense means the local government, individuals, and institutions that have an effect on childrens lives:
Art. 85. Duties of the Community. - To insure the full enjoyment of the right of every child to live in a society that offers or guarantee him safety, health, good moral environment and facilities for his wholesome growth and development, it shall be the duty of the community to: a. Bring about a healthy environment necessary to the normal growth of children and the enhancement of their physical, mental and spiritual well-being; b. Help institutions of learning, whether public or private, achieve the fundamental objectives of education; c. Organize or encourage movements and activities, for the furtherance of the interests of children and youth; d. Promote the establishment and maintenance of adequately equipped playgrounds, parks, and other recreational facilities; e. Support parent education programs by encouraging its members to attend and actively participate therein; f. Assist the State in combating and curtailing juvenile delinquency and in rehabilitating wayward children; g. Aid in carrying out special projects for the betterment of children in the remote areas or belonging to cultural minorities or those who are out of school; and h. Cooperate with private and public child welfare agencies in providing care, training and protection to destitute, abandoned, neglected, abused, handicapped and disturbed children.
In order to facilitate community involvement in the lives of children, the Child and Youth Welfare Code establishes that Councils for the Protection of Children should be encouraged by every barangay council. This council should be made up of responsible members of the community and will have the following duties:
(1) Foster the education of every child in the barangay; (2) Encourage the proper performance of the duties of parents, and provide learning opportunities on the adequate rearing of children and on positive parent-child relationship; (3) Protect and assist abandoned or maltreated children and dependents;
263
CHILD AND YOUTH WELFARE CODE, arts. 61-66.
(4) Take steps to prevent juvenile delinquency and assist parents of children with behavioral problems so that they can get expert advise; (5) Adopt measures for the health of children; (6) Promote the opening and maintenance of playgrounds and day-care centers and other services that are necessary for child and youth welfare; (7) Coordinate the activities of organizations devoted to the welfare of children and secure their cooperation; (8) Promote wholesome entertainment in the community, especially in movie houses; and (9) Assist parents, whenever necessary in securing expert guidance counseling from the proper governmental or private welfare agency. In addition, it shall hold classes and seminars on the proper rearing of the children. It shall distribute to parents available literature and other information on child guidance. The Council shall assist parents, with behavioral problems whenever necessary, in securing expert guidance 264 counseling from the proper governmental or private welfare agency.
c. Protective Custody There may be instances when parents are unable or unwilling to protect their children and be their primary caregivers. Instances of this will be when the parent or guardian is unable to protect their child(ren) from abuse, exploitation, discrimination, or when the parent or guardian is responsible for these acts.265 If a child is a victim, then he or she can file a complaint. The following may also file a complaint: (1) the parents or guardian, (2) a relative, (3) A social worker, (4) the Barangay chairman, or (5) three concerned citizens. After the filing of the complaint, the child will be placed under protective custody, as outlined in Executive Order No. 56 (1986). Custody proceedings are governed by the provisions of Presidential Decree No. 603.266 d. Parent education According to the Committee on the Right of the Child, the State has a duty to advise and educate parents within their jurisdiction about parental responsibilities. Any parental education programs should have their attendance based on a voluntary basis and there should be no direct cost on the parents; such programs have increasingly been found to be cost effective on a long term basis as they lower juvenile delinquency. The programs are now recommended in the United Nations Guidelines for the Prevention of Juvenile Delinquency, paragraph 16. The Committee would like to see positive steps taken in parental education as a way to preempt problems that would otherwise be cause for state-enforced separation further down the line. The Committee also reminds family and family associations of the important role they play in parental education as peer-to-peer communication and education is often easier and more effective. States are also encouraged to find innovative ways of educating parents early on such as effective parenting classes as part of a regular school schedule. 267 It is important to note that the Committee stresses that educational programs for parents
CHILD AND YOUTH WELFARE CODE, art. 87. Special Protection of Children Against Abuse, Exploitation and Discrimination Act, 2. 266 Id. 27. Committee on the Rights of the Child, Report on the fortieth session, September 2005, CRC/C/153,
265 264
267
para. 646.
should be free of charge because any kind of payment could be seen as a disincentive to parents.268 In a statement addressed directly to the Philippines, the Committee said, Greater efforts should be made to provide family life education and develop awareness of the responsibility of the parents. The Committee encourages non-governmental organizations and children and youth groups to pay attention to the need to change attitudes as part of their advocacy action.269 It is not only parents that should benefit from this education but any one who might be called upon to provide for the best interests of the child. Grandparents, siblings or other relatives might also be called upon and benefit from these educational classes. The type of material that is learned in these classes includes, enhancing parents understanding of their role in their childrens early education, encouraging child rearing practices which are child centered, encouraging respect for the childs dignity and providing opportunities for developing understanding, self esteem and self confidence.270 In the Philippines, under the Rules of Court Special Proceedings, Rule 99: New Rule on Adoption sets out one kind of parental education that is required. Section 2 requires that parents adopting a child are entitled to both education and counseling. When looking at the Philippines, the Committee on the Rights of the Child had drawn special attention to the following services offered for parent education and involvement:
The Department of Social Welfare and Development (DSWD) and the Department of Health (DOH) have been developing tri-media materials for parent education programmes. In Country Programme for Children (CPC) 6 areas, capacity building of parents and parent volunteers is supported to enable them to become better caregivers and to be able to facilitate 271 parent education classes and initiate supervised neighborhood play groups for children.
Periodic parental education is established under the Child and Youth Welfare Code in that the Department of Social Welfare is expected to periodically hold a Parent Education Congress where parents learn more about their roles in the upbringing of their children, they learn more about the relationship their children have with others and they become more effective at their parental duties.272 e. Institutions, facilities and services for the care of children
268 269
Committee on the Rights of the Child, Sweden CRC/C/15/Add.101, para. 16. Committee on the Rights of the Child, Philippines CRC/C/15/Add.29, para. 22. 270 Committee on the Rights of the Child, General Comment No. 7, 2005, CRC/C/GC/7/Rev.1, paras. 20 and 29.
271 272
CRC/C/PHL/3-4, para 215. Article 138, Presidential Decree No. 603.
The Committee recognizes that in some circumstances the best interest of the child might be served if that child is no longer with his or her parents. However, such a separation should only happen in extreme circumstances. Furthermore, if this separation happens, it should not necessarily entail the severance of the parent and child contact. Methods should be developed to determine if an absolute ban on communication is in the best interests of the child rather than making the ban automatic.273 There are only few provisions falling solely under Article 18 that expect the State to provide for the child. However, there are some important ones that need to be identified. Child care for working parents is an important one; this involves day care facilities for younger children and after school programs for older children. Further services include community groups for mothers and their children, play groups, toy libraries, and youth groups. Other services envisioned by this Article are multidisciplinary services such as child guidance or medical/advice centers in schools.274 States should be cautious of their over-reliance on large, expensive institutions. They must recognize the utility of smaller local institutions that can adapt to serve the needs of the local parents and children. States should be willing to provide capital to those at the local level and delegate the development to said organizations. The State is expected to constantly refine its services to children and services in their best interest it must never be complacent.275 Very young children that have development needs centered on security, consistent individual relationships, and one-on-one interaction are of special concern. According to the Committee, it is the States responsibility to provide high -quality daycares for the development of the very young. These can be either home based or community based. Empowering parents or caregivers should also be a primary concern. The States role is to provide the framework needed to facilitate the development of these young children. However, a standardized and uniformed approach is not recommended. Instead, the Committee would like to see programs developed at the local level that incorporates the unique characteristics of the community. Moreover, it is important to note that these facilities are not just to be used for the care of the child but also for their education. This is sometimes referred to as Educare to demonstrate that the guiding principle of this early child care is a combination of child care and child education.276
Luxembourg CRC/C/15/Add.250, paras. 34 and 35. Implementation Handbook on the Convention on the Rights of the Child, page 238. 275 Implementation Handbook on the Convention on the Rights of the Child, page 238. 276 Committee on the Rights of the Child, General Comment No. 7, 2005, CRC/C/GC/7/ Rev.1, paras.
274
273
30,31.
Although generally not applicable to the Philippines, the Committee did make two important points when discussing the day-care programs of the Peoples Republic of Korea (North Korea) that can be generally applied. First, state institutions or state supported institutions are not a substitute for parents. In most cases the best interest of the child is served by having parents or legal guardians as the primary caregiver and too much reliance on the state to raise children can be to their detriment. Second, the creation of institutions and programs are not enough. These institutions and programs must be properly funded and staffed to be in the best interests of the child.277 In the Committees General Comment No. 4 on Adolescent health and development in the context of the Convention on t he Rights of the Child, it reminds states that they must not forget about the development of older children the adolescent. The State is expected to provide assistance by developing institutions, facilities, and services that support the best interests of adolescents. This includes, when the circumstances require, material assistance. The State is also expected to be instrumental in helping parents develop a relationship of trust with their child(ren) where sexual behavior and risky lifestyle choices can be discussed. This is all aimed at finding solutions that are best for the adolescent while respecting his or her rights. As discussed above, the issue of adolescent parents provides a unique situation for childrens rights as both the parent and child are considered children under the terms of the Convention. For that reason the State should develop programs aimed directly at supporting parents in this unique situation. This requirement for special support is not limited to adolescent parents; programs will need to be set up to support the values and cultures of those parents who are ethnically or culturally distinct from the majority while still protecting the best interests of the child. Finally, there should be strict adherence to laws regulating state enforced separation of a child and parent. These laws should be made to conform to the Convention.278 Republic Act No. 8980 is designed to enhance the rights of young children and support parents in their roles as primary care givers. It supports parent education, involvement, advocacy, and mobilization of communities. It recognizes that parents are the most important for early childhood care and development.279 There are a few different laws governing day care services in the Philippines. There is a general statement on day care that comes from the Child and Youth Welfare
Committee on the Rights of the Child, Democratic Peoples Republic of Korea CRC/C/15/Add.239, paras. 38, 40, 39 and 41. 278 Committee on the Rights of the Child, General Comment No. 4, 2003, CRC/ GC/2003/4, para. 16. 279 An Act Promulgating a Comprehensive Policy and a National System for Early Childhood Care and Development (ECDD), Providing for Funds Therefor and for Other Purposes [EDDC Act], Republic Act No. 8980, 1 & 4 (2000).
277
Code: Day-care service and other substitute parental arrangement: Day-care and other substitute parental arrangement shall be provided to a child whose parents and relatives are not able to care for him during the day. Such arrangements shall be the subject of accreditation and licensing by the Department of Social Welfare. 280 One law governs how government employees are to be provided with day care services: all National Government Agencies Government-Owned/Controlled Corporations shall provide day care to the children of employees who are less than six years old. The premises for care will either be where the parents work or a place accessible to the parents that they agree upon. The objective of this day care service is basically to take over the responsibilities of the parents while they are at work. State provision of day-cares is expanded in the Barangay-Level Total Development and Protection of Children Act. In this Act, the State declares it to be their policy to defend the right of children to proper care and nutrition and to provide them with protection from conditions that could be prejudicial to their development. This is accomplished through day-care centers in every Barangay that provide a total development and protection children for children under six years of age. Under the guidelines for implementing this Act, a day-care is described as an arrangement for supplemental care for a child that would otherwise be abandoned or neglected for part of the day. Supplemental care is described as temporary care that help the child in his or her development. Parental consent is required for the program unless the child is abused, neglected, or exploited. This program for children contains the following:
(a) Monitoring of registration of births and the completion of the immunization series for prevention of tuberculosis, diphtheria, pertussis, tetanus, measles, poliomyelitis and such other diseases for which vaccines have been developed for administration to children up to six (6) years of age; (b) Growth and nutritional monitoring, with supplementary nutritional feeding and supervision of nutritional intake at home; (c) Care for children of working mothers during the day and, where feasible, care for children up to six (6) years of age when mothers are working at night. Provided, that the day care center need not take care of the children in a particular place but shall develop network of homes where women may take care of the children up to six (6) years of age of working mothers during work hours, with adequate supervision from the supervising social welfare officer of the Department of Social Welfare and Development. Provided, further, that, where young children are left to the care of a paid domestic, an elderly relative or older children without adequate and competent adult supervision, the supervising Social Welfare Officer shall provide such training and adult supervision until the childrens care meets adequate standards whereby the children under their care will develop normally as healthy, happy and loved children, even in the absence of their mothers during working hours; (d) Materials and network of surrogate mothers-teachers who will provide intellectual and mental stimulation to the children, as well as supervised wholesome recreation, with a balanced program of supervised play, mental stimulation activities, and group activities with peers; (e) A sanctuary for abused, neglected or exploited children either in one child institution in the barangay and/or network of sanctuary-homes which will take in children in urgent need of
280
CHILD AND YOUTH WELFARE CODE, art. 69.
protection due to a situation which endangers the child or which has exposed the child to cruelty and abuse. Provided, that the day care center, with the help and support of the barangay chairman and their barangay-level support systems, may call upon law enforcement agencies when the child needs to be rescued from an unbearable home situation; (f) A referral and support system for pregnant mothers for prenatal and neonatal care and, in the proper case, for delivery of the infant under conditions which will remove or minimize risk to mother and child. Provided, that high-risk mothers shall be referred to the proper tertiary or secondary care service personnel and children who are at risk from any condition or illness will be brought for care. Provided further, that the day care center shall be alert to illegal abortions and incompetent and untrained "hilots" so that they are provided the needed basic training for normal delivery and are trained to recognize high-risk pregnancies which should be referred to competent obstetrical and pediatric medical care for mother and child who are at risk; and (g) A support system and network of assistance from among the members of the barangay for 281 the total development and protection of children.
The exact care that these children will be getting is established in the Guidelines for Implementing Republic Act No. 6972. The care will come from an accredited Child Care worker during part of the day or during the night while the parents are at work. This will be under the supervision of the Supervising Social Welfare Officer. Children will have the opportunity to engage in early childhood development activities and their physical development and nutrition will be monitored monthly by the Day-Care Workers. If a child is found to be under nourished, the child will be sent to the Department of Social Welfare and Development Unit Office for supplemental feeding. Sanctuaries should also be established for temporary custody of children that are victims of abuse, neglect, or exploitation.282 The Committee on the Rights of the Child had this to say in 2009 about the development of child care in the Philippines so far:
In the UNICEF-assisted Country Programme for Children (CPC) 6 areas, as of mid-2007, 186 municipalities have organized local Early Childhood Care and Development (ECCD) [services] coordinating committees and 10,791 day care centers have been operational. 6,809 ECCD centers now have improved capacity to provide ECCD services, having trained ECCD workers and adequate ECCD materials and equipment, monitoring health and nutrition status of young children and referring cases needing special attention. A total of 5,488 day care centers in CPC 6 areas have been accredited. Over 20,000 3-5 year old children have been participating in homebased ECCD; 230 of these children belong to indigenous communities. Alternative modes of delivery of ECCD services such as the Mobile ECCD and ECCD on-the-air have increased the outreach in urban and remote areas with close to 110,000 parents benefiting from these alternative and innovative approaches. In addition to the 10,791 day care centers that had been operational in the CPC 6 areas, there were 34,020 day care centers in non-CPC 6 areas as of June 2007. This brought the total number of day care centers nationwide to 44,811 being manned by 44,024 day care workers An Act Establishing a Day Care Center in Every Barangay, Instituting Therein a Total Development and Protection of Children Program, Appropriating Funds Therefor, and for Other Purposes, Republic Act No. 6972, 1-3 (1990). 282 Guidelines for Implementing Republic Act No. 6972, 8.
281
serving 1,441,877 children. As of 2007, sixty-six percent of day care centers (29,820) and also sixty-six percent of day care workers (29,283) had been accredited. A total of 3,173 ECCD workers were given orientation on Standards for Day Care and other ECCD Centers and on the Service Providers/Users Manual as of June 2007. Despite the combined coverage of center-based ECCD services and home-based ECCD services, the ECCD programme has only reached 34 percent of 3-5 year old Filipino children, a long way to go to achieve the target of 70 percent by 2009. The potentials of the home-based ECCD services in reaching greater numbers of children in rural and remote areas, in densely populated urban poor communities, as well as in armed conflict communities and communities of indigenous peoples should be seriously studied. Partnership with faith-based organizations which have access to these areas can increase the coverage of ECCD services including birth registration, immunization, nutrition interventions, psychosocial stimulation and early learning Some adjustments have to be made in order to reach ECCD goals and targets. In selecting barangays, priority should be given to (a) barangays with the highest population of children with the least access particularly the urban slums and informal settlements; and (b) barangays with the highest incidence of poverty such as the communities of landless tenants and small farmers, small fishermen, and indigenous peoples. Second, there should be a stronger and sustained advocacy to scale up ECCD interventions and elevating it from a project to a programme and ensure that no child will be left out. The latest ECCD directional plan prepared in 2007 has taken 283 these issues and recommendations into consideration.
283
Committee on the Rights of the Child, CRC/C/PHL/3-4, page 72, para 216-219.

CRC and Philippine child rights

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THE CRC AND THE PHILIPPINE LEGAL SYSTEM

Respect for the views of the child

THE CRC AND THE PHILIPPINE LEGAL SYSTEM

Article 12, Implementation Handbook (1st ed.)

THE CRC AND THE PHILIPPINE LEGAL SYSTEM

THE CRC AND THE PHILIPPINE LEGAL SYSTEM

Article 101 P.D. 603 (1974). Article 87 P.D. 603 (1974).

THE CRC AND THE PHILIPPINE LEGAL SYSTEM

THE CRC AND THE PHILIPPINE LEGAL SYSTEM

THE CRC AND THE PHILIPPINE LEGAL SYSTEM

THE CRC AND THE PHILIPPINE LEGAL SYSTEM

THE CRC AND THE PHILIPPINE LEGAL SYSTEM

THE CRC AND THE PHILIPPINE LEGAL SYSTEM

Article 213, Family Code. Ibid

THE CRC AND THE PHILIPPINE LEGAL SYSTEM

THE CRC AND THE PHILIPPINE LEGAL SYSTEM

THE CRC AND THE PHILIPPINE LEGAL SYSTEM

(g) Filial privilege

G.R. No. 101083 July 30, 1993 Executive Order No. 52

THE CRC AND THE PHILIPPINE LEGAL SYSTEM

THE CRC AND THE PHILIPPINE LEGAL SYSTEM

THE CRC AND THE PHILIPPINE LEGAL SYSTEM

THE CRC AND THE PHILIPPINE LEGAL SYSTEM

Childs right to freedom of expression

THE CRC AND THE PHILIPPINE LEGAL SYSTEM

THE CRC AND THE PHILIPPINE LEGAL SYSTEM

THE CRC AND THE PHILIPPINE LEGAL SYSTEM

THE CRC AND THE PHILIPPINE LEGAL SYSTEM

THE CRC AND THE PHILIPPINE LEGAL SYSTEM

Childs right to freedom of thought, conscience and religion

THE CRC AND THE PHILIPPINE LEGAL SYSTEM

Article 18, Universal Declaration of Human Rights, http://www.un.org/en/documents/udhr/index.shtml.

THE CRC AND THE PHILIPPINE LEGAL SYSTEM

THE CRC AND THE PHILIPPINE LEGAL SYSTEM

THE CRC AND THE PHILIPPINE LEGAL SYSTEM

THE CRC AND THE PHILIPPINE LEGAL SYSTEM

THE CRC AND THE PHILIPPINE LEGAL SYSTEM

THE CRC AND THE PHILIPPINE LEGAL SYSTEM

THE CRC AND THE PHILIPPINE LEGAL SYSTEM

THE CRC AND THE PHILIPPINE LEGAL SYSTEM

THE CRC AND THE PHILIPPINE LEGAL SYSTEM

THE CRC AND THE PHILIPPINE LEGAL SYSTEM

THE CRC AND THE PHILIPPINE LEGAL SYSTEM

THE CRC AND THE PHILIPPINE LEGAL SYSTEM

THE CRC AND THE PHILIPPINE LEGAL SYSTEM

Childs right to freedom of association and peaceful assembly

THE CRC AND THE PHILIPPINE LEGAL SYSTEM

THE CRC AND THE PHILIPPINE LEGAL SYSTEM

THE CRC AND THE PHILIPPINE LEGAL SYSTEM

THE CRC AND THE PHILIPPINE LEGAL SYSTEM

THE CRC AND THE PHILIPPINE LEGAL SYSTEM

THE CRC AND THE PHILIPPINE LEGAL SYSTEM

Childs right to privacy

THE CRC AND THE PHILIPPINE LEGAL SYSTEM

THE CRC AND THE PHILIPPINE LEGAL SYSTEM

THE CRC AND THE PHILIPPINE LEGAL SYSTEM

THE CRC AND THE PHILIPPINE LEGAL SYSTEM

THE CRC AND THE PHILIPPINE LEGAL SYSTEM

THE CRC AND THE PHILIPPINE LEGAL SYSTEM

THE CRC AND THE PHILIPPINE LEGAL SYSTEM

THE CRC AND THE PHILIPPINE LEGAL SYSTEM

THE CRC AND THE PHILIPPINE LEGAL SYSTEM